Commissioners of Highways v. People ex rel. Bonker

Citations

• 66 Ill. 339

Syllabus

<p>1. Mandamus—when it will he awarded. The writ of mandamus ought not to be awarded in any case unless the party applying for it shall show a clear legal right to have the thing sought by it done, and in the manner and by the person or body sought to be coerced; and it must be effectual as a remedy, if enforced, and it must be in the power of the party, and his duty also, to do the act sought to be done.</p> <p>2. This writ is of such a nature that courts will grant it only in extraordinary cases, when otherwise there would be a failure of justice.</p> <p>3. Same—to compel commissioners of highways to remove obstructions in roads. Where a road had been opened and traveled for many years, and it was claimed that certain parties had obstructed the same by encroachment of their fences to its center, which fact was disputed, and it appeared that the encroachment, i'f any, was made under an honest claim of right: Held, that it was error to award a mandamus against the commissioners of highways to compel them to remove the obstruction, there being no such duty imposed on them by statute, and because the law afforded ample redress by suit for the penalty imposed, and by indictment, in which the parties charged could be heard in defense of their claim.</p>