Harding v. Town of Hale

Citations

• 61 Ill. 192

Syllabus

<p>1. Public highway—obstruction of. Where the county commissioners lay out and establish a public highway of a prescribed width, it will be confined to that width, unless increased by dedication or otherwise. The mere fact that it was graded, and was traveled a greater width, hut outside of the road no particular strip was so used, does not change the boundary of the road.</p> <p>2. Under the act of 1849, the owner of land adjoining a highway may plant a live fence on the precise line of the road, and may erect a protection fence not more than six feet in the road from the live fence, and may maintain it for the period of five years, without being liable to prosecution for obstructing the highway.</p> <p>3. Bill in equity—estoppel. Where a party files a bill in equity to restrain the removal of such protection fence, and, by mistake, alleges in his bill that the road was established four rods wide, and afterwards, by leave of court, amends his bill, and charges that the road was, in fact, established but fifty feet in width, the first allegation does not estop him from showing he was prosecuted for obstructing the road that was but fifty feet in width.</p> <p>4. Highway—aet of 1849. In such a case, it is error to instruct the jury that, if the defendant built a fence in any part of a highway that had been used for more than twenty years before the fence was erected, they should find the defendant guilty of obstructing the road. Such an instruction excludes a defendant from all benefit of the statute of 1849, and should be modified or refused.</p> <p>5. Same—dedication. It is error for the court to instruct the jury that, while the voluntary use with the assent of the owner of the soil may not be enough to create a highwa)', but when used, traveled by the public, and recognized and repaired by the public authorities, and acquiesced in by the owner, it becomes a public highway by dedication. In such a case, the question of an intention to dedicate by the owner is ess