City of Alton v. Fishback

Mr. Justice Creighton delivered the opinion of the court. This was an action in trespass, in the Circuit Court of Madison County, by appellee against appellant. The declaration alleges that appellant, with force and arms, broke and entered a certain close of appellee, and broke and damaged a certain fence, trod down and damaged the grass and shrubbery and took and removed the soil and earth of appellee, and built a sidewalk on the said close, and kept and continued said sidewalk on the said close without the leave or license of appellee. To the declaration was pleaded, not guilty, liberum tenementum, and eight other pleas, setting forth, in effect, that the close wherein the said trespass was supposed to have been committed, was a public street and highway. This case involves a freehold, and this court has no jurisdiction. In trespass guare elausum fregit, for breaking and entering plaintiff’s close, etc., when the pleas are not guilty and liberum tenementum, a freehold is involved, and an appeal lies directly from the trial court to the Supreme Court. Piper v. Connelly et al., 108 Ill. 646; W. C. St. R. R. Co. v. Morrison, Adams & Allen Co., 54 Ill. App. 556. A public highway is a perpetual easement, and an appeal which raises the material question of the existence or nonexistence of such highway, involves a freehold. Taylor v. Pierce et al., 174 Ill. 9; Chaplin v. Commissioners of Highways, 126 Ill. 264; Turpin et al. v. Dennis, 139 Ill. 274; The Town of Brushy Mound v. McClintock, 146 Ill. 643; The Village of Crete v. Hewes et al., 168 Ill. 330; Com’rs of Highways v. C. & N. W. Ry. Co., 34 Ill. App. 32; Wright v. Commissioners of Highways, 46 Ill. App. 271; Township of Madison v. Gallagher, 54 Ill. App. 91; Commissioners of Highways v. Green, 55 Ill. App. 667. Appeal dismissed. Leave is granted to parties to withdraw records, abstracts and briefs.