Fox v. Virgin, 11 Ill. App. 513 (1882)

Oct. 24, 1882 · Illinois Appellate Court

11 Ill. App. 513

Samuel L. Fox v. John Virgin et al. Samuel L. Fox v. Christopher Hodgson.

Highway by prescription. — The public can acquire no right to a road over vacant and uninclosed land by use alone for twenty years.

Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.

Opinion filed October 24, 1882.

Messrs. Brown, Kirby & Russell, for appellant;

that there must be an intention to dedicate, or acts sufficient to amount to such intention, cited Fox v. Virgin, 5 Bradwell, 515; Kelly v. Chicago, 48 Ill. 388; Princeton v. Templeton, 71 Ill. 68; McIntyre v. Story, 80 Ill. 127; Marcy v. Taylor, 19 Ill. 634; Gentleman v. Soule, 32 Ill. 271; Godfrey v. Alton, 12 Ill. 29.

Messrs. Whitlock, Smith & Crawley, for appellees.

Per Curiam.

The first of these two cases was once before in this court and is reported in 5 Bradwell, 515. The second is for a trespass of a precisely similar nature, and the defense in both cases rests upon the same state of facts. Up to the •year 1874, when appellant first fenced the land, it was a timber tract, vacant and uninclosed. The public could therefore acquire no right to a road over it by use alone for twenty years. Kyle v. Town of Logan, 87 Ill. 67.

We are still of the opinion the evidence not only fails to show a road to have been established by dedication, but the evidence shows directly the contrary. When appellant fenced his land he expressly told the public authorities the-purposes for which he left the lanes on two sides of it, and from then until now he has persistently maintained a hostile attitude toward the road. The judgments will therefore be reversed and the causes remanded.

Reversed and remanded.