Taylor v. Pierce
50 N.E. 1109
Ill.
1898
Check Treatment
Mr. Justice Boggs

delivered the opinion of the court:

We are urged in the brief of counsel for appellant to reverse the judgment of the Appellate Court upon three grounds only, viz.: First, it did not appear from the record that a highway legally existed covering the said strip of ground; second, that if any highway had been legally established there it had been lost by non-user and the adverse possession of the appellant; and third, that the circuit court erroneously entered the decree dissolving the injunction and dismissing the bill upon a motion to dissolve the injunction, and without hearing the evidence of either party.

The first and second of these contentions involve the issue of the existence of a public highway. A public highway is a perpetual easement and a freehold estate. (Chaplin v. Comrs. of Highways, 126 Ill. 264; Village of Crete v. Hewes, 168 id. 330.) A freehold is involved where a freehold is so put in issue that a decision of the case necessarily involves a decision of that issue. (Sanford v. Kane, 127 Ill. 591.) The Appellate Court is lacking in jurisdiction and power to consider and determine a contention involving a freehold estate. We can, on appeal from a judgment rendered by the Appellate Court, only review the decision of that court upon errors over which it had jurisdiction to pass. (Indiana Millers’ Fire Ins. Co. v. People, 170 Ill. 474.) If the appellant desired to have reviewed that part of the decree of the circuit court which involved a freehold she should have brought the record directly from the circuit court to this court. In such cases this court will consider and decide all assigned errors, as well those which involve a freehold as those which do not.

It was within the power and jurisdiction of the Appellate Court to decide the third contention, but it appears from the record that the subject matter thereof was not assigned as for error in that court. The only assignments of error in that court were as follows: First, the court erred in dissolving said injunction, because the main allegations in said bill are not denied but admitted by said answer; second, there is nothing in said record showing said road was ever opened or traveled south of said fence, and as the allegations that said fence has been in that place for twenty-five years are not denied, therefore the court erred in dismissing the bill. These assignments did not present to the Appellate Court the question whether the circuit court heard or should have heard the evidence of the parties. In Indiana Millers’ Fire Ins. Co. v. People, supra, we said: “Clearly this court can review the decision of the Appellate Court only upon errors there properly assigned and insisted upon.” As the only errors assigned in the Appellate Court were such as involved the issue as to the existence of a freehold, that court should have dismissed the writ of error for want of jurisdiction.

The Appellate Court not having jurisdiction of the errors assigned, its judgment must be reversed and the cause remanded to that court, with directions to dismiss the writ of error for want of jurisdiction.

Reversed and remanded.