Linblom v. Ramsey (75 Ill. 246, 1874)

Mr. Justice McAllister

delivered the opinion of the Court:

Appellant sued appellee in trespass for unlawfully tearing down a portion of fence enclosing land of which the former was in possession as tenant of Mrs. Dewey, and letting in cattle, whereby his crops were injured. The possession of plaintiff, and the trespass by defendant, were conclusively proved, but the jury found the defendant not guilty, and the court gave judgment upon the verdict. Plaintiff appealed to this court.

The defendant sought to justify the trespass, on the ground that he was supervisor of a road district in Henderson county, and that the locus in quo was a part of his district and a portion of an established highway. Ho question is made as to his being such supervisor, and to prove the establishment of a public highway through the lands in question, defendant gave in evidence an order of the county court of that county made in 1861, purporting to make an alteration in a certain county road leading from Shaw’s bridge on Honey Creek, to the town of Warren, and described thus: “ Commencing at the southeast corner of the north-east quarter of section 20, township 9 north, range 5 west, thence running 80 rods west, thence north 160 rods, thence on the most practicable route to the town of Warren.” The order of the county court, after referring to the report of the viewers, adopts the plat and field notes of the surveyor accompanying it, “ except the east line of. William Ingerson’s land, W. i, S. E. 17, on which there is a hedge standing, which shall not be interfered with without damages are paid.”

It appeared that the lands in plaintiff’s possession were in the same section and adjoined those of Ingerson referred to in the order; that the hedge referred to was 160 rods long; that nothing had ever been done under the order until in the spring of 1871; that Ingerson claimed, but never had been paid any damages; and, although the court admitted evidence on behalf of defendant, not of competent surveyors or of a satisfactory character, tending to show that Ingerson’s hedge was outside the line of the proposed road as surveyed and designated by the viewers, yet when the plaintiff offered to prove by a competent surveyor, who had carefully surveyed the lines of the proposed road, that the hedge would fall within such lines, the court excluded the evidence and instructed the jury on behalf of defendant that in this case it made no difference whether the Ingerson hedge in question was within the line of the road in controversy or not.

The county of Henderson was not under township organization. The fifty-seventh section (Gross’ Stat. 1869, p. 673) made it the duty of the viewers to ascertain when damages would be claimed, and report the names of the claimants to the court at the time of making the report.

The road viewers in this case reported the names of several, among whom was Ingerson. The merit of his claim was recognized, and the order was qualified as above stated. Under this phase of the case the order was not operative, or, in other words, was not a justification to the supervisor of roads to proceed and open the road until a compromise of the damages, or an assessment of them, had been made and reported to the county court, as provided in section 68 of the statute. Gross’ Stat. 1869, pp. 675-6. That section, after providing for the mode of assessment, says: “ Which award or assessment of damages, shall, as well where the amount shall be agreed upon by the parties, without applying to a justice of the peace, be laid before the county commissioners’ court for consideration, who shall examine the matter, and should they decide the amount of damages is not unreasonable, or more than should be given, and that the opening and improving the road is called for by the public interest,