Hutchins v. County Commissioners, 6 Ill. 345, 1 Gilm. 345 (1844)

Dec. 1844 · Illinois Supreme Court

6 Ill. 345, 1 Gilm. 345

John D. Hutchins, plaintiff in error, v. The County Commissioners of De Witt County, defendants in error.

Error to De Witt.

The thirtieth section of the “Act concerning Public Roads,” approved February 20th, 1841, expressly gives to the owner of land, over which a road may be. located, the right of appeal from the decision of the County Commissioners’ Court to the Circuit Court, on the report of the householders summoned to assess his damages.

It appeared from the record in this cause, that at the September term 1843, of the De Witt County Commissioners’ Court, a petition was presented regularly to said Court for the re-location of a certain road in said county, and that the Court appointed viewers, who afterwards made a favorable report, and the road was thereupon ordered to be re-located. The proper survey was also returned,

It also appeared from the record, that at the March term of said Court, 1844, Miles Gray and Thomas Rogers presented their report in relation to damages sustained by John D. Hutchins, by reason of said road running through his land, reporting that Hutchins would sustain no damage thereby, which said report was approved by said Court, whereupon said Hutchins appealed to the Circuit Court and regularly entered into bond, &e.

At the April term of the De Witt Circuit Court, 1844, the Hon. Samuel H. Treat presiding, upon the motion of the County Commissioners, the Court dismissed the appeal upon the ground that the law did not allow an appeal in such a case. From this decision of the Circuit Court a writ of error is prosecuted.

The case was submitted to this Court by agreement of the parties. It was also agreed that the above was the only point made by the record, i. e. Does the statute allow an appeal to Hutchins to the Circuit Court from such an order of the County Commissioners’ Court?

J. T. Stuart & B. S. Edwards, for the plaintiff in error,

cited Laws of 1841, p. 242, proviso to the 30th section of the “J3ct concerning Public Roads.”

J. A. McDougall, for the defendants in error.

The Opinion of the Court was delivered by

Treat, J.

A petition was presented to the County Commissioners’ Court of De Witt county, praying for the relocation of a certain road, and the Court appointed viewers, for the purpose. The report of the viewers was favorable, and the Court ordered the road to be re-located. The road, as re-located, ran through the land of Hutchins, who objected to the opening of the same. The householders summoned to assess his damages, reported to the Court that, in their opinion, he would sustain none. Their report was approved, and Hutchins prosecuted an appeal to the Circuit Court. That Court, on the motion of the defendants, dismissed the appeal on the ground that an appeal did not lie in such a case. That decision is now assigned for error.

The decision of the Circuit Court was erroneous. The thirtieth section of the “¿let concerning Public Beads,” approved February 20th, 1841, expressly gives to the owner of land, over which a road may be located, the right to appeal from the decision of the County Commissioners’ Court on the report of the householders.

The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings.

Judgment reversed.