Gillett v. Taylor

Opinion by the Court. Appellant sued appellee in trespass for filling up a certain ditch which appellant had opened up in the highway. The appellee was one of the highway commissioners and had been placed in charge of the highway where this ditch was, and being of the opinion that it was not properly there, he caused it to be filled. Thereupon appellant caused it to be again opened, and in this suit he sought to recover the expense of reopening the ditch. It appears that appellant, being the owner of certain lands near the highway, had laid a tile drain for the purpose of draining his land into the highway, but he did not own the lands on either side of the highway at the point where the ditch was opened. There was a tile drain then in the highway; but it was too small to carry off the water from appellant’s drain. He sought to prove that he had lawful authority from two of the commissioners to dig the ditch, and that he had such an ownership or possessory right therein as would enable him to maintain trespass for an injury to the same. We do not care to discuss the question whether he had, according to his own claim, such an interest as would be necessary to support the action. The Circuit Court excluded the record evidence which he sought to introduce to show his authority for digging the ditch, and this necessarily prevented him from recovering. He now assigns error upon this ruling of the court. The record thus offered was not authenticated by the signature of the president of the board, as the statute requires, and was not admissible for that reason. Again, it does not appear that an order was then made authorizing the ditch to be dug, but there is merely a recital that on a former occasion consent had been given to that effect. When that occasion was and who was present does not appear. It may be that this was intended as an authority then conferred to make, the ditch, but the language employed is not sufficient for this purpose. After this record had been excluded the plaintiff sought to prove a verbal permission from two of the commissioners, but this was properly excluded. We find it unnecessary to discuss the question as to the power of the commissioners to grant such authority as here contended for, it being sufficient for the present purpose that no proper evidence was offered to show that the authority had been granted. The People, etc., v. Madison Co., 125 111. 834. Judgment affirmed.