Town of Grand Prairie v. Schneider, 211 Ill. App. 107 (1918)

April 5, 1918 · Illinois Appellate Court
211 Ill. App. 107
Town of Grand Prairie, Appellee, v. C. F. Schneider, Appellant

Town of Grand Prairie, Appellee, v. C. F. Schneider, Appellant.

(Not to be reported in full.)

Abstract of the Decision.

1. Roads and bridges, § 16 * - — what is not notice to landowner that trail is claimed by public as highway. There is no notice to a landowner that an old trail over timbered and unoccupied land was claimed by the public as a highway because-of the fact that houses were built along the trail and because the trail was worked where the houses which were built had been built in the timber at an early day, and the nearest point of obstruction to the place where repairs were made thereon was one mile away near a schoolhouse.

2. Roads and bridges, § 16* — when granting of petition for laying out new roads is not notice that old trail is claimed to be high *108 way. The granting of a petition for the laying out of new roads upon section and half section lines is not notice that the public is claiming an old trail running diagonally through the section as a highway, where no steps were taken to vacate it.

*107Appeal from the County Court of Jefferson county; the Hon. Robert E. Hickman, Judge, presiding. Heard in this court at the October term, 1917.

Reversed with finding of facts.

Opinion filed April 5, 1918.

Statement of the Case.

Action by Town of Grand Prairie, plaintiff, against C. F. Schneider, defendant, to recover a penalty for obstruction of a highway. From a judgment for plaintiff for $5 and costs, defendant appeals.

For the decision on a former appeal, see 202 Ill. App. 562.

Charles F. Dew, for appellant.

W. G. Murphey and Curtis Williams, for appellee.

Mr. Justice McBride

delivered the opinion of the court.

*1083. Roads and bridges, § 21 * — what is not record evidence of prescriptive right to trail as highway. The making of a survey of a trail, claimed to be a highway, under direction of highway commissioners is not record evidence of a prescriptive right.

4. Roads and bridges, § 30* — when survey or setting of stakes is not evidence of dedication of highway. A survey or setting of stakes along a trail, claimed to be a highway, by a surveyor under direction of highway commissioners is not evidence of a dedication of the highway when the owner of the land had no notice of and was not present at such survey.

5. Roads and bridges, §• 11* — what essential to constitute highway by prescription. To constitute a highway by prescription, the use must be adverse, uninterrupted, exclusive, continuous and under a claim of right.

6. Roads and bridges, § 12* — when use of land as highway is not adverse. Where the use of land for a highway is merely permissive by the owner, it is not adverse and forms no basis upon which a right of way by prescription can rest.

7. Roads and bridges, § 21* — when use of land for highway presumed to be by permission. The use of vacant, uninclosed and unoccupied land for a highway will be presumed to be by permission and not adverse.

8. Easements, § 26* — when adverse right to not created. An adverse right to an easement cannot grow out of a mere permissive enjoyment for any length of time.

9. Roads and bridges, § 20* — what is essential to establish public highway by prescription over uninclosed lands. In order to establish a public highway by prescription over uninclosed lands, there must be something more than mere travel by the public. It must appear that the user is under a claim of right in the public and not by mere acquiescence on the part of the owner. Express notice is not necessary, but there must be such conduct on the part of the public authorities as to reasonably inform the owner that the highway is used under a claim of right.

10. Roads and bridges, § 23* — when establishment of public highway by prescription over unoccupied land not shown. Evidence held insufficient to establish a public highway by prescription over timbered and unoccupied lands where the highway consisted of a tortuous, winding trail and there was very little work done on it.