Lewis v. Connor, 325 Ill. 70 (1927)

Feb. 16, 1927 · Illinois Supreme Court · No. 16800

325 Ill. 70

(No. 16800.

Decree affirmed.)

John Lewis, Appellant, vs. S. A. Connor et al. Appellees.

Opinion filed February 16, 1927

Rehearing denied April 7, 1927.

Highways — when a bill to enjoin opening a public highway is properly dismissed. A bill to enjoin the opening of a new public highway through the complainant’s land is properly dismissed for want of equity where it appears from the allegations of the bill that proceedings in the matter of opening the highway are pending at law, in which the complainant has full and complete remedy and of which he is availing himself, and that the only question raised by the bill which the complainant desires considered can be raised in the proceedings at law.

Appeal from the Circuit Court of Jasper county; the Hon. William B. Wright, Judge, presiding.

James H. Smith, and George W. Me Colley, for appellant.

W. F. Johnson, and Kasserman & Kasserman, for appellees.

Mr. Justice Heard

delivered the opinion of the court:

This is an appeal from a decree of the circuit court of Jasper county sustaining a demurrer to and dismissing for want of equity a bill filed by appellant praying- for an injunction to restrain appellees from opening a public highway through appellant’s land. The bill alleged the filing with the commissioner of highways of the town a petition signed by twenty-two land owners in the town residing within two miles of the proposed road, for the laying out of a new road of the width of 60 feet, to pass over the lands of appellant and others. The bill alleged subsequent proceedings thereon, culminating in an appeal by both parties, appellant and appellees, to the circuit court of Jasper county from the judgment of a justice of the peace assessing damages for the opening of the road, and that such appeals were pending in the circuit court at the time of filing the bill for injunction herein.

Appellant in his brief states that the only allegation of the bill which he desires considered by this court is an allegation to the effect that the attempt to lay out the road is unconstitutional, illegal and void for the reason that in 1923 the Department of Public Works and Buildings of the State of Illinois “made a preliminary survey and tentative location” of Route No. 33 of the durable hard road system of the State of Illinois, and that the Department of Public Works and Buildings in locating that part of Route No. 33 which runs from Effingham to Newton “surveyed and tentatively located a part or portion thereof” over the lands of appellant and at the exact location of the new road. It is evident from the allegations of the bill that appellant had a full and complete remedy in the premises at law, of which he was availing himself, and that the question which he. desires considered in this case can be raised in the proceeding already pending in the circuit court, ( Town of Kingston v. Anderson, 300 Ill. 577,) and the court did not err in sustaining the demurrer to the bill.

The decree is affirmed.

Decree affirmed.