| Ill. | Apr 15, 1864
delivered the opinion of the Court:
The statute regulating township organization has declared, that unless a public road, surveyed and located by the town authorities, shall be opened within five years, the same shall become vacated. Scates’ Comp. 364, § 17. Such non-user for the limited period operates as an abandonment, and remits the owners of the land which had been condemned for the use of the public to their former rights in the property. And whether the right of way has been obtained by release or by condemnation or payment of damages, the right of the owner to resume the exclusive use and occupancy of the land is complete and unqualified after such abandonment. Had the full period of five years expired after this road was located without its being opened, there could be no question of the right of defendant in error to prevent the opening of the road through his premises.
The bill alleges, and the fact is admitted by the demurrer, that the road was located across the township, on the 27th day of June, 1857, and the commissioners proposed to open that portion passing through the premises of defendant in error at the date of suing out the writ of injunction, which was on the 26th of June, 1862. The bill alleges that the land through which the road was located, for its whole length west of defendant in error, was inclosed and in cultivation, and the right of way had not been procured by release from the owners or by payment of the damages assessed for the purpose, nor had the means been provided for their payment, and that it was impracticable within the five years to pay the damages and open the road, as notices had not been given to the owners. It was also claimed that the road had thereby been abandoned, and the commissioners and those acting under them would become trespassers, by entering upon the premises of defendant in error and opening that portion of the road. The allegations of the bill, which must be taken as true, show that the purposes which had induced the location of the road had ceased to operate. The road petitioned for, surveyed and established, was an entirety. These acts were all performed to create an entire road, and not to create sections or parts of a road. It was to obtain a thoroughfare on this line for the public across the township, and not across the farm of defendant in error. . And to have avoided vacating the road, it should have been opened its entire length within five years from the time of its location. That effect could not be avoided by opening portions within the time. Had all the road, except the portion running through these premises, been opened, or had it been practicable to open the whole road before the expiration of the time, and the commissioners had in good faith been proceeding to that end, it would have sufficed. But this we have seen was impossible, and had they proceeded it would only have resulted in opening the portion running through the premises of defendant in error.
The design in establishing this road would not have been accomplished by opening this portion, as the remainder would have remained unopened after the five years had expired, and the whole road thereby vacated, and defendant in error then could have closed this portion. Thus it will be seen, that to have permitted the commissioners to proceed, would have resulted in no benefit to the public, as, the day after they had opened the road, defendant could have rightfully closed it up and prevented travel over that portion. So the act would have been useless to the public and injurious and expensive to defendant in error. The law never requires the performance of a useless act, and chancery will interpose to restrain its performance when attended with injury to others. In this case, had the commissioners proceeded to open this portion of the road, it would have been done under color of law, and they could have justified the act in an action for damages. This, then, confers jurisdiction upon a court of equity to prevent an injury for which a recovery could not have been had at law; and brings the case within the rule that equity will restrain an act which, if performed, would produce irreparable wrong and injury.
It is, however, urged that defendant in error, having released the right of way for the road over his premises, is now estopped from objecting to its being opened. But the bill alleges, and it is admitted to be true by filing the demurrer, that the consideration moving him to give the release was to obtain the road as located. Having failed to obtain the road, it would at least be unjust to hold that right, and yet deprive him of the consideration that induced the release. It was not given to obtain a passway over his own farm, but to obtain a road across the township from the east to the west line. Hor is it any answer to say that it might be extended in the future, so as to accomplish the original design, by a new proceeding had for the purpose, as no such presumption can be indulged.
The law allowing the town authorities. five years within which to open new roads;- is liberal, and. affords ample time within which to construct' them; and if required for the public convenience, it can hardly be supposed that such a road would -remain so long unopened. The authorities having failed for five, years, lacking but a single day, to open this road, and then only propose to open a small portion of the line, it would seem that public- necessity did not require its construction. If, however,-the wants of the public were found to require only the east and not the west end of the road, the course to have been adopted was to-have proceeded under the law, to have that portion vacated, precisely as is required to vacate any other road. But to permit a road to be located its full length, merely to acquire a road for only a part of the distance, would be contrary to the design of the law, if not a fraud upon a .portion of the property holders, through whose land it is run, as well as those who petition for its location. If in this case the east half of this road is necessary to accommodate the public, it can be located in the mode prescribed by the statutes. But-having abandoned the road by failing to open it within the period limited by the statute, the road- has become vacated.' The Circuit Court,- therefore, committed no error in overruling the demurrer, and rendering the injunction perpetual, and the decree must be affirmed.
Decree affirmed.