Town of Brushy Mound v. McClintock, 46 Ill. App. 273 (1892)

July 5, 1892 · Illinois Appellate Court

46 Ill. App. 273

The Town of Brushy Mound v. William McClintock, Jr.

Jurisdiction of Appellate Court—Question of Freehold—Public Highway.

Where one party affirms and the other denies that the public has of right an easement of indeterminate duration, really perpetual, over the land of one party, and this is the only question in the case, a question of freehold is involved, and this court is without jurisdiction.

[Opinion filed July 5, 1892.]

Appeal from the Circuit Court of Macoupin County; the Hon. Jacob Fouke, Judge, presiding.

Messrs. Anderson & Bell, for appellant.

Mr. R. B. Shirley, for appellee.

Mr. Justice Boggs.

This was a prosecution by the appellant against the appellee for an obstruction of an alleged public highway. The judgment of the court below was in favor of appellee and the record was brought here by the appellant. The place where the appellee obstructed the alleged highway was on his own land. There was no dispute that he did cause the obstruction, and the only question is whether at that point there was a public highway. The appellant affirmed that the public had of right an easement of indeterminate duration really perpetual in its nature, to pass over the land of appellee, and this the appellee expressly denied. Ho other question arises and we can not determine this controversy without ascertaining and deciding whether the easement thus claimed has been established.

This involves a freehold of which we have no jurisdiction Chaplin v. Commissioners, etc., 126 Ill. 264; Malaer v. Hudgens, 130 Ill; 225.

We must, therefore, dismiss the appeal on our own motion. Leave will be given to withdraw record, abstracts and briefs.

Appeal dismissed.