| Ill. | Dec 15, 1853
Trespass guare clausum fregit. Plea of liberum tenementum in John Woods, Orlando H. Woods, and others, heirs of Jonas Woods, and by leave, &c. Also, that the locus in quo was a highway, and plaintiff supervisor, and as such, he removed obstruction, which, &c. Upon these pleas issues were joined.
The first question raised is upon the exclusion of a deed from Ira Woods to John Woods, for the north half of the north-west quarter of section nineteen, in township eight north, range one east, “ excepting seven rods, and of a rod, off of the east end,” dated '17th January, 1839. An exception, in the same language, is contained in a deed from Ira Woods to Jonas Woods for the south half of the same quarter section, dated same day and year, and which was admitted in evidence.
This deed should have been admitted in evidence, as showing title to part of the quarter section, and tending to show what title the party might set up and claim by construction.of the deed, to the seven -fij-g rods in controversy. He had a right to introduce such evidence of title as he possessed, and so as to raise a question and obtain a decision upon the proper construction of a deed, under which he claimed rights by license from the grantees to enter upon the excepted strip of land, and do the acts complained of. Every exception in a deed may not be good; and those who have interests to challenge them should have the opportunity and privilege of being heard. See 2 Hilliard on Real Property, p. 352, §§ 134-147.
The objection to the exception for uncertainty is not well taken. The true construction of the deed reserves a strip of land seven -fjg rods wide east and west, and extending in length across the quarter section north and south, and will amount to seven acres in quantity. To construe it as reserving only seven rods of land in quantity, would be, in our opinion, against the manifest intention of the party expressed in the deed. 13 Illinois R. 715; 10 Maine R. 396 ; 10 Mass. R. 186.
The record and proceedings of the county court in relation to the location and establishing a highway over the premises, were improperly rejected. The proceedings took place under the act of 1835. The 11th section provides that three viewers shall be appointed, who shall view the ground, and upon oath shall determine whether they believe the road - applied for to be necessary; and if so, they are to locate and report. Here a judgment and discretion are to be exercised. The general rule laid down on this subject is, that where a number of persons are intrusted with powers in matters of public concern, and not of mere private confidence, and all of them are regularly assembled and consulting, the majority may act and determine, if their authority is not otherwise limited and restricted. Grindley v. Barker, 1 Bos. & Pull. R. 236; Doughty v. Hope, 3 Denio, R. 598; s. c. 353.
But although the report in this case is signed by only two of the viewers, and does not show, nor is there any evidence, that the third viewer was present and consulting; yet according to the presumption held in Doughty against Hope, we shall presume that he was present and consulting, until the contrary is shown.
This presumption is consistent with the principles of evidence applied in establishing the existence of highways and their particular location, by parol evidence, in Lyman et al. v. The People, 1 Gilman, R. 8, 9 ; Nealy v. Brown et al. Ib. 12 to 14.
The objection urged against an inquiry into the acts and proceedings of the county commissioners’ court, in a collateral proceeding, has no foundation, under that well settled principle, in this case. In this case it extends only so far, as to ascertain by their minutes, files, and other proofs, whether the road had been legally laid and established under the law; and does not propose to revise the propriety of its establishment. These courts have general supervision over county roads; and yet are, to a certain extent, of limited jurisdiction. Although required to keep written entries of their acts and determinations, they are not required to preserve in writing all the evidence on which they exercise their jurisdiction. In this connection may be noticed the next question raised in relation to the rejection of a petition by defendant and others, in which the location of the road over the locus in quo is described and set forth ; and also, of parol proof of the actual location on the same place. Both should have been admitted. The first we think competent evidence of defendant’s admission; and the last competent evidence to establish the existence of a highway, if travelled, recognized and worked upon as such, to raise a presumption of dedication. These proofs should all have been sent to the jury, as competent, and tending to prove the issues.
Judgment reversed, and cause remanded.
Judgment reversed.