Commissioners of Highways v. Harrison

Citations

• 108 Ill. 398
• 1884 Ill. LEXIS 1491

Syllabus

<p>1. Highway—as to the width of a public road—by whom to be determined, and how ascertained. Under the laws in force in 1853, the county court, upon the return to it of the viewers’ report, with a plat showing courses and distances, was required to fix the width of a public road in the order establishing the same, and enter the same of record. The statute did not of itself fix the width of the road. It was simply directory, that the court should determine that matter. But a failure to fix the width of a road by that court did not render the order establishing the road a nullity. It might still he sustained as a road of the width that it was actually traveled and worked under such order.</p> <p>2. Under authority in the county court to relocate a public road, there is no power to establish the road on the same identical route, and define its width; and the court can not, after the rights of the public have been fixed as to the width of a road, make a new order increasing its width, without first taking the necessary steps to condemn the additional ground sought to be taken.</p> <p>3. Section 64, article 17, of the Township Organization law of 1861, though it might have legalized a road laid out by the county court, by making the order laying it out evidence of the regularity of all the proceedings in its establishment, did not determine the width of such road, but left that as it was before its passage.</p> <p>4. Where the county court, in its order establishing a public road, failed to fix the width of such road, and it appeared it was opened, traveled and worked upon only to the width ef forty feet for many years, when the commissioners of highways threatened and were preparing to open the road through complainant’s premises four rods wide: Held, that the opening of such road beyond the width of forty feet was properly enjoined on bill in equity.</p>