52 Ill. 78 | Ill. | 1869
delivered the opinion of the Court:
We are unable to perceive from this record that any right which the plaintiff in error has in the land over which this road runs, has been invaded.
The facts are, that the road was petitioned for at the instance of the owner of the land over which it was to run in part; that he, as one of the commissioners of highways, acted upon the petition, and granted the order to establish the road; that he executed a release under seal, for a valuable consideration, as expressed in the instrument, of all claim to damages sustained by him by reason of laying out and opening the road through his land; that the road was opened, used and worked up to the time of the owner’s death, he assisting in building bridges upon it.
These acts amount to a dedication of the land for the purposes of this easement, and estop him, and all others claiming under him, from averring anything against them. They manifest an intention, on his part, to appropriate this land occupied by the road to the purposes to which it was appropriated. The objection, that all the requirements of the statute were not observed can have no weight, when the owner himself initiated the proceeding, and that every act done was with his knowledge and consent.
It is too late for the plaintiff in error now to deny there was a road legally established.
As this road was only an easement, and did not dispose of the fee, the question of a homestead right in the land by the surviving widow can not arise.
As this road was not established against the will of the owner of the land, hut at his instance and request, no question of power can arise.
We decide the case on the acts of the owner, which, in our judgment, amount to a dedication of the land.
The decree of the circuit court is affirmed.
Decree affirmed.