| Ill. | Jan 31, 1883
delivered the opinion of the Court:
This was a bill in equity, filed by appellants, to enjoin appellee from removing the fence on the opposite sides of a field, where it is claimed a road enters and passes through the field. Complainants deny that there is any regular, legally laid out or established road that passes through the field, and defendant claims there is, and justifies his acts on the ground that he is a road commissioner, and has the right, and that it is his duty, to remove the fence as an obstruction, and keep the road open and free to travel by the public. These are the grounds of the controversy.
It is first urged in affirmance of the decree dismissing the bill, that it will not lie to enjoin a trespass. Such is undoubtedly the rule where it is a simple trespass to property, and is but a single act, and the person committing or threatening the trespass is able to respond in damages; but where he is insolvent, and repeated trespasses of a grave character are threatened to be repeated, equity will interfere to prevent the wrong, by restraining the threatened trespass. Here, the fence had been removed a considerable number of times, and it is admitted that defendant had said he would, and intended to, remove it as often as it should be replaced, and that he has no property subject to execution. This brings the case within the exception to the general rule, and authorized the court to entertain jurisdiction of the case, because there was not an adequate remedy at law, and also to prevent a multiplicity of suits at law.
Appellee has endeavored to establish his defence by showing that the road was located and established by commissioners appointed by the act of the legislature, adopted the 27th of February, 1847. (Sess. Laws, 93.) Also, by proof that, under the appointment of commissioners by the county commissioners’ court, at its September term, 1842, a road was located, and is established, of which the portion in controversy is a part, and further, that the road is established by user as a .public highway for twenty years or more. The claim that this portion of the road is any part of that located by the county commissioners’ court, in 1842, is not shown. There is no evidence showing, or tending to show, where that road was in fact located. The general direction no doubt appears, but there is no evidence that it passed over any portion of the land of appellants. For aught that appears, it may not have passed within miles of this road at that point. It devolved on appellee not only to prove that the road was established, but that it was at the precise places where he removed the fence, to establish this defence. This he has clearly failed to do.
Has appellee proved that this is a part of the road located by the commissioners appointed by the General Assembly ? The proof shows that they located a road, but it does not show that this is any part of that road. Some field notes were read in evidence, purporting to be connected with the location of a road by the commissioners appointed by the act of February 27, 1847, and purporting to be signed by Seth Fuller, surveyor of Bond county, and bearing date the 19th day of August, 1847. The paper has the file mark of the county clerk of Marion county, on the 14th day of November, 1881, but it is not signed. It also appears that pages 21 and 22 of these notes of the survey had been cut out. The county clerk of Marion county swears that he had searched, but had been unable to find any record of a road running across this land, in his office; that the paper purporting to be the field notes of the survey of the road located by the commissioners under the act of 1847, was handed to him by a person who was collecting facts from which to write a history of the county, who had been searching among old papers pertaining to his office. There was no evidence of its authenticity,—not even the evidence of the person who handed it to the clerk as to how he became possessed of it, or that it was ever filed as a part of the records establishing the road of which it purports to be a survey. There is no evidence Fuller ever lived in or was the surveyor of Bond county, or if he did live in that county, that he was appointed by the commissioners to make the survey, nor is his signature proved to be genuine, nor is there the slightest proof that the commissioners intended the paper to be filed, or that it ever was his purpose to or that he did file it. We have but the paper, without knowing by whom made, or the purpose for which it was made, or in whose custody it has remained. This falls far short of legitimate evidence, and was not admissible. It does not matter, therefore, whether these field notes call for a road across this land at the place traveled as a road, or not, as the field notes are not proved to have been made according to the requirements of the law, or to be authentic. There is nothing to show they are not fabricated, or were made for other purposes than to be filed as evidence of the place where the road was located.
As to the claim of user, there is a large amount of evidence, extending back more than forty years. It tended to prove, and does prove, that there has been a road traveled in the general direction, and near to where appellee claims it was located; but there is little, if any, that proves or tends to prove that the travel has ever been, or now is, within the lines within which it was located, or within the same lines traveled for twenty years. In fact, the decided preponderance is, that the line of travel has constantly varied, and that it is more than the width of the road, as claimed to have been laid out, from where it was formerly traveled, and these changes have been made within less than that period. Again, this portion of the road ran through uninclosed prairie lands, and the people traveled as they chose, not being confined to any definite track. ■ The evidence not only fails to prove that the road was traveled at the places where appellee removed the fence, continuously for twenty years, but it, to our minds, satisfactorily proves that it was not thus traveled. Because a road is traveled, or even legally established, that does not authorize a road commissioner to open or remove fences not within the boundaries of the road. His power to act is confined to the territory of the road, and to obstructions within that territory; and when he justifies, he must prove that his acts were done between the outer lines of the road. The evidence shows that the road authorities made diligent search for the evidence that a road was located on this land, but were unable to find any to prove the fact, and they believed that none existed, or if it did, there was no evidence of the fact, and for that reason, and to accommodate public travel, compromised, and took from appellants a strip for the purpose, on one side of the land, and agreed to abandon the old traveled way. A road may no doubt be acquired over uninclosed prairie land by user, but it is more difficult to confine the travel continuously over precisely the same track or line of travel, and even when that is done, it is more difficult of proof, than when confined by lanes, or, when in the timber, by trees, and other objects that confine travel within the boundary lines of the road. But in all cases, to establish the justification of removing obstructions, it must be shown that they are actually within those lines.
All the evidence considered, we are clearly of opinion that appellee failed to establish a right to remove or break down the fence, as he claimed a right to do, and the court below erred in dismissing the bill, and the decree must be reversed and the cause remanded.
Decree reversed.