153 Ill. 534 | Ill. | 1894
delivered the opinion of the court:
A motion is made to dismiss this writ of error for want of jurisdiction, upon the ground that it does not appear from the record that a freehold is involved in the case. A freehold is not directly involved therein, and therefore the jurisdiction of this court cannot attach on that ground. (Zinc Co. v. City of LaSalle, 117 Ill. 411.) nevertheless, the motion to dismiss is not well made. The case is within the residuary clause of section 8 of the Appellate Courts act, which gives the right of appeal to and the right of a writ of error from this court in the matter of the final judgments, orders or decrees of the Appellate Courts “in all other cases” not embraced in the enumeration in the preceding part of-that section. (1 Starr & Curtis’ Ann. Stat. chap. 37, sec. 8, p. 702; Baber v. Pittsburg, Cincinnati and St. Louis Railroad Co. 93 Ill. 342; Peck v. Herrington, 104 id. 88; Chalcraft v. Louisville, Evansville and St. Louis Railroad Co. 113 id. 86; Farmers’ Nat. Bank v. Sperling, id. 273.) The motion is denied.
In respect to the merits of the case, we concur in and adopt what is said in the opinion of the Appellate Court. (44 Ill. App. 589.) It may, however, be well to add, in view, of suggestions made in some of the briefs filed in this court, and for fear of misapprehension, that if the right of way granted or reserved in a deed is not definitely located, the practical location and use of such way, under the deed, acquiesced in at the time of the grant or reservation, and for a long time subsequent thereto, may operate as an assignment of the right, and may have the same legal effect as if the way was fully and particularly described by the terms of the deed ; and that when a way is thus definitely located by usage for a considerable length of time, and is once fully established, it cannot be changed by either party without the consent of the other. See 19 Am. & Eng. Ency. of Law, p. 100, and authorities cited in notes 7 and 8 ; also, p. 106, and authorities cited in note 6,
In the case at bar, it is manifest that the gist of the complaint is the gate that was constructed by defendant in error. At the time of the reservation the country was sparsely settled. The evidence shows that at the time of the reservation, and thenceforward until about the time of the commencement of this suit, the land between the public highway and the stock water pond lay open to commons. It also shows that no one particular and limited line of travel was used by either persons or stock. As one witness expresses it, “it was all open, and we traveled where it suited our convenience.” Plaintiff in error says in his own testimony: “The track was always open. The cattle sometimes spread out from four to six rods. This track is one I used in going to both pond and wood lot. This track made by wagons and cattle reached to a width of three rods, and this gate is in the track thus made, and the track was used oftener in going to the wood lot than to the pond.” John Brink, the surveyor employed by plaintiff in error, and introduced by him as a witness, swears that where defendant in error erected the gate the travel was from four to six rods wide, by reason of the line being washed out, and that they had to travel in different places. And defendant in error in his testimony says: “There are three old tracks where the road used to run. There has been travel in different places for thirty-five years, and another line or track besides the one marked ‘0, ’ directly where the gate now is, and another marked ‘B. ’ ” Besides this, plaintiff in error, in his bill of complaint herein, makes the following allegations: “Thereafter the grantees of said Lewis enclosed a part of the land on the south of said pond, and had extended such enclosure northerly until it reached near to the southerly line of said pond, and to allow such use of said fields your orator, without complaint, moved his line of travel over said field northerly, so as to give the least inconvenience to the owner of said field, provided your orator could be as well accommodated thereby.”
From an examination of the record we can not do • otherwise than come to the conclusion that in the conduct and acts of defendant in error in constructing a fence around his land and in placing the gate where it is, there was nothing in conflict .with the principles of law we have stated above or that was violative of the rights of plaintiff in error.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
