Commissioners of Highways v. Elwood

Appellate Court of Illinois

Commissioners of Highways v. Elwood

96 Ill. App. 239, 1901 Ill. App. LEXIS 11

DecidedJuly 12, 1901

StatusPublished

This text of 96 Ill. App. 239 (Commissioners of Highways v. Elwood) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commissioners of Highways v. Elwood, 96 Ill. App. 239, 1901 Ill. App. LEXIS 11 (Ill. Ct. App. 1901).

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Opinion

Mr. Justice Waterman

delivered the opinion of the court.

This was a proceeding growing out of an attempt by the commissioners of highways to lay out and establish a road through the property of appellee, being a bill by appellee to enjoin said commissioners from removing the fences of appellee, and from laying out, establishing, grading or opening said road as a public highway, and from interfering with the complainants’ possession of the premises upon which said road was located.

Upon the hearing of the cause it was stipulated that the complainant (appellee) was the owner of the land in question, and had been in possession of the same for more than three years next prior to the filing of the bill; that the commissioners contemplated grading the road a portion of its length, and were about to do so; that the commissioners had removed the fences of complainant, as alleged in the bill, and that the commissioners were about to grade the road.

• The commissioners claimed the right to establish a road over the premises of appellee, and that the proper proceedings, authorizing them to do so, had been had.

The contest in the court below, therefore, involved necessarily a freehold; that is to say, the question submitted to the court was whether appellee had, by proper proceeding, instituted and carried on by the commissioners of highways, been divested of a freehold estate, which it was admitted theretofore he had in and to the premises over which said road was claimed to have been established. An appeal from the decree of the court below, therefore, does not lie to this court. Chaplin v. Commissioners of Highways, 126 Ill. 264-271, 274.

The appeal is dismissed.

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Mr. Justice Waterman

delivered the opinion of the court.

This was a proceeding growing out of an attempt by the commissioners of highways to lay out and establish a road through the property of appellee, being a bill by appellee to enjoin said commissioners from removing the fences of appellee, and from laying out, establishing, grading or opening said road as a public highway, and from interfering with the complainants’ possession of the premises upon which said road was located.

Upon the hearing of the cause it was stipulated that the complainant (appellee) was the owner of the land in question, and had been in possession of the same for more than three years next prior to the filing of the bill; that the commissioners contemplated grading the road a portion of its length, and were about to do so; that the commissioners had removed the fences of complainant, as alleged in the bill, and that the commissioners were about to grade the road.

• The commissioners claimed the right to establish a road over the premises of appellee, and that the proper proceedings, authorizing them to do so, had been had.

The contest in the court below, therefore, involved necessarily a freehold; that is to say, the question submitted to the court was whether appellee had, by proper proceeding, instituted and carried on by the commissioners of highways, been divested of a freehold estate, which it was admitted theretofore he had in and to the premises over which said road was claimed to have been established. An appeal from the decree of the court below, therefore, does not lie to this court. Chaplin v. Commissioners of Highways, 126 Ill. 264-271, 274.

The appeal is dismissed.

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96 Ill. App. 239, 1901 Ill. App. LEXIS 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commissioners-of-highways-v-elwood-illappct-1901.

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