Brockhausen v. Bochland

Illinois Supreme Court

Brockhausen v. Bochland

27 N.E. 458, 137 Ill. 547

CourtIllinois Supreme Court

DecidedMay 13, 1891

StatusPublished

Cited by9 cases

This text of 27 N.E. 458 (Brockhausen v. Bochland) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brockhausen v. Bochland, 27 N.E. 458, 137 Ill. 547 (Ill. 1891).

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Opinion

Mr. Justice Wilkin

delivered the opinion of the Court:

Enough will appear from the foregoing statement of facts to show that the bridge in question, and that part of the old line of travel with which it was connected, have been wholly abandoned by the public. In fact, a mere inspection of a plat •showing the location of the old and new roads will convince :any one that the latter is by far the more convenient and safe route, and renders the former absolutely useless as a public-highway. The public may lose its right to a highway either by its being vacated as provided by statute, or by abandonment. Champlin v. Morgan, 20 Ill. 181; Grube v. Nichols, 36 id. 92,

: Under the facts of this case and these decisions there can be no question that what is here termed the “old road” had ceased to be a public highway. This, in, fact, is not controverted in the argument, but appellant now seeks to maintain his right to the injunction prayed for, first,-on the ground that, the road being abandoned, the bridge became his property, because it was located on his land; and second, that he has a private interest in the old road and bridge as. an abutting property owner, which can not be taken from him without just compensation, therefore he insists these property rights in the-bridge'entitle him to maintain this bill, independent of the fact as-to whether a highway continues to exist there or not-A sufficient answer to these positions is the fact that the bill does not proceed upon the theory of complainant’s individual ownership in the bridge or his personal rights to the road, but. on the sole ground that there still exists a public highway, and. that it is the duty of defendants, as highway commissioners,, to not only allow the bridge to remain where it is, but to keep-it, and the roadway connected with it, in proper repair. The rule that a complainant, in equity, must recover, if at all, on the case made by his bill, is elementary. It has been strictly-enforced by this court whenever invoked. McKay v. Bissett et al. 5 Gilm. 499; Kellogg v. Moore, 97 Ill. 282, and eases-there cited.

We are of opinion that the points above made are not well taken in any view of this case, but .the defendants having made a complete defense to the bill as framed, by proof that a public.highway did not exist at the place alleged, were entitled to the decree rendered by the circuit court, and beyond that they were not called upon to go.

The decree of the circuit court will be affirmed.

Decree affirmed.

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Mr. Justice Wilkin

delivered the opinion of the Court:

Enough will appear from the foregoing statement of facts to show that the bridge in question, and that part of the old line of travel with which it was connected, have been wholly abandoned by the public. In fact, a mere inspection of a plat •showing the location of the old and new roads will convince :any one that the latter is by far the more convenient and safe route, and renders the former absolutely useless as a public-highway. The public may lose its right to a highway either by its being vacated as provided by statute, or by abandonment. Champlin v. Morgan, 20 Ill. 181; Grube v. Nichols, 36 id. 92,

: Under the facts of this case and these decisions there can be no question that what is here termed the “old road” had ceased to be a public highway. This, in, fact, is not controverted in the argument, but appellant now seeks to maintain his right to the injunction prayed for, first,-on the ground that, the road being abandoned, the bridge became his property, because it was located on his land; and second, that he has a private interest in the old road and bridge as. an abutting property owner, which can not be taken from him without just compensation, therefore he insists these property rights in the-bridge'entitle him to maintain this bill, independent of the fact as-to whether a highway continues to exist there or not-A sufficient answer to these positions is the fact that the bill does not proceed upon the theory of complainant’s individual ownership in the bridge or his personal rights to the road, but. on the sole ground that there still exists a public highway, and. that it is the duty of defendants, as highway commissioners,, to not only allow the bridge to remain where it is, but to keep-it, and the roadway connected with it, in proper repair. The rule that a complainant, in equity, must recover, if at all, on the case made by his bill, is elementary. It has been strictly-enforced by this court whenever invoked. McKay v. Bissett et al. 5 Gilm. 499; Kellogg v. Moore, 97 Ill. 282, and eases-there cited.

We are of opinion that the points above made are not well taken in any view of this case, but .the defendants having made a complete defense to the bill as framed, by proof that a public.highway did not exist at the place alleged, were entitled to the decree rendered by the circuit court, and beyond that they were not called upon to go.

The decree of the circuit court will be affirmed.

Decree affirmed.

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27 N.E. 458, 137 Ill. 547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brockhausen-v-bochland-ill-1891.

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