Rich v. Gow

Pillsbury, P. J. The motion to dissolve the injunction operated precisely as a demurrer to the bill (Weaver v. Poyer 70 Ill. 567), and the question was thereby raised, whether the facts averred showed such a case as called upon a court of equity to interfere by way of injunction to prevent any further proceeding to assess damages and open the road under the statute. All the averments in the bill showing that the proposed road would be more expensive to keep in repair than the old one, or that no public necessity for the new road exists, can be passed without comment, as those questions are for the county authorities charged by the statute with the duty of determining them before making the order establishing the road, and their conclusions thereon are not a subject of review by the courts in a collateral proceeding. Sangamon County v. Brown, 13 Ill. 207. Nothing is alleged in the bill tending to show that the county board did not acquire jurisdiction to act upon the petition, appoint viewers and make an order establishing the road upon their report recommending it. No attack is made in the bill upon the sufficiency of the petition, or the time or manner of giving the notice required of the intended application to the board for its action upon the petition. The principal point made by the bill and argued here for the relief prayed, is that the order of the county board granting the prayer of the petition and ordering the road opened upon the condition that the petitioners pay the costs and damages is a delegation of the powers conferred by the statute upon the county board to the defendants to control all the subsequent proceedings in relation to the assessment and payment of damages and final opening of the road as located by the viewers. We can not consent to the view that the order should be so construed. The petition was for a public highway for public use, and the viewers reported that the public necessities demanded it, and the county board in adopting such report must be considered as having determined the question of its utility aud necessity as a public way. To this extent it appears that it acted in strict conformity with the statute defining its powers and duties in that regard. It may be conceded that the condition or requirement that the costs and damages be paid by the petitioners has no warrant in the statute, yet we are not prepared to hold that such requirement renders the whole order void. The statute has provided how the costs and damages are to be paid, and the requirement in the order that they shall be paid in any other manner can not be held to operate as a repeal of it. Before the land of the complainant can be taken for public use his damages must be. assessed and paid, and he has shown by his bill that they are capable of admeasurement, and it would seem that he would have but a small interest in the question from what source the money is derived. The mere fact that the order requires something to be done by the petitioners which the board has no right to compel, can not destroy the jurisdiction of the board to grant the prayer of the petition if the public interest demands it. The condition relates to subsequent proceedings in the cause and may well be ignored or disregarded. The proceedings show the laying out of a public road in compliance with the terms of the statute, and the supervisor has taken the proper and necessary steps to have the justice assess the complainant’s damages, and until the damages assessed are paid or tendered the complainant can not be in danger of losing his land. • In case the county board fails or refuses to pay the damages no injury results to him. Holding, as we do, that the condition in the order is invalid and the order re-locating the road within the power and jurisdiction of- xhe county board, there is no ground upon which complainant.at this time can ask a court of equity to restrain the supervisor and justice of the peace from proceeding to perfect the legal laying out of the road, by the assessment of damages. The decree making the injunction perpetual will be reversed and the cause remanded with directions to the circuit court to dissolve the injunction and dismiss the bill without prejudice. Decree reversed and remanded.