Town of Brushy Mound v. McClintock

Appellate Court of Illinois

Town of Brushy Mound v. McClintock

46 Ill. App. 273, 1892 Ill. App. LEXIS 342

DecidedJuly 5, 1892

StatusPublished

This text of 46 Ill. App. 273 (Town of Brushy Mound v. McClintock) 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.

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Town of Brushy Mound v. McClintock, 46 Ill. App. 273, 1892 Ill. App. LEXIS 342 (Ill. Ct. App. 1892).

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Opinion

Mr. Justice Boggs.

This was a prosecution by the appellant against the appellee for an obstruction of an alleged public highway. The judgment of the court below was in favor of appellee and the record was brought here by the appellant. The place where the appellee obstructed the alleged highway was on his own land. There was no dispute that he did cause the obstruction, and the only question is whether at that point there was a public highway. The appellant affirmed that the public had of right an easement of indeterminate duration really perpetual in its nature, to pass over the land of appellee, and this the appellee expressly denied. Ho other question arises and we can not determine this controversy without ascertaining and deciding whether the easement thus claimed has been established.

This involves a freehold of which we have no jurisdiction Chaplin v. Commissioners, etc., 126 Ill. 264; Malaer v. Hudgens, 130 Ill; 225.

We must, therefore, dismiss the appeal on our own motion. Leave will be given to withdraw record, abstracts and briefs.

Appeal dismissed.

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Mr. Justice Boggs.

This was a prosecution by the appellant against the appellee for an obstruction of an alleged public highway. The judgment of the court below was in favor of appellee and the record was brought here by the appellant. The place where the appellee obstructed the alleged highway was on his own land. There was no dispute that he did cause the obstruction, and the only question is whether at that point there was a public highway. The appellant affirmed that the public had of right an easement of indeterminate duration really perpetual in its nature, to pass over the land of appellee, and this the appellee expressly denied. Ho other question arises and we can not determine this controversy without ascertaining and deciding whether the easement thus claimed has been established.

This involves a freehold of which we have no jurisdiction Chaplin v. Commissioners, etc., 126 Ill. 264; Malaer v. Hudgens, 130 Ill; 225.

We must, therefore, dismiss the appeal on our own motion. Leave will be given to withdraw record, abstracts and briefs.

Appeal dismissed.

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46 Ill. App. 273, 1892 Ill. App. LEXIS 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-brushy-mound-v-mcclintock-illappct-1892.

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