| Ill. | Nov 2, 1891
delivered the opinion of the Court:
Appellee raises the question of jurisdiction in this court, insisting that under the statute allowing appeals from and writs of error to circuit courts, this appeal should have been taken to the Appellate Court for the Third District. In the opinion of a majority of the members of the court, a freehold in the nature of a perpetual easement appurtenant to the lots owned by the complainant and defendants is involved, within the meaning of the statute. The motion to dismiss the appeal will therefore be overruled. .
On the merits of the case, appellants insist, first, that appellee’s remedy, if entitled to any, was complete at law, and therefore his bill should have been dismissed. On this point it is sufficient to say, that having answered the bill, and proceeded to a hearing of the cause without raising the objection now urged, it can not be availed of on error. It can not be seriously contended that the subject matter of this litigation is wholly foreign to equity jurisdiction, and therefore, if the defendants below desired to question that jurisdiction on the ground that there was a complete remedy at law, they should have done so by demurrer to the bill. 48 111. 384; 51 id. J)00.
It is again urged, that appellee slept upon his rights, if he had any, until a court of equity can not be called upon to aid him. There is nothing whatever in the record to show that defendants had been misled to their injury, or in any way placed in a worse position by his failure to file his bill at' an earlier date. There is, in fact, no proof of such a denial or absolute obstruction of his alleged rights by the defendants as to have required him to act more promptly than he did. 95 Ill. 69.
The objection that proper parties were not made to the bill, even if tenable, also comes too late. The bill does not, however, recognize any one as interested in this litigation other than the complainant and defendants. There is no attempt to affect the rights of any adverse owner of the strip of land on which it is claimed the road in question was laid out. The real question in the case is, whether or not the commissioners, in the partition proceeding, had power to lay out said road, and this question, by their own admission, these defendants are estopped to raise. Whatever title they have is deraigned from that partition proceeding, and the deeds under which they hold describe the lots according to the plat of the lots and the road made by those commissioners. They can not now be permitted to say that such plat is void. But, at most, there was but error and irregularity in that proceeding, and it can not be attacked collaterally.
The contention that the proof fails to show that the gates maintained by the defendants were not necessary and proper to protect their crops, is without merit, if, as contended by complainant, the roadway has a legal existence. In other-words, if a road at all it is an open way, and defendants have no. right to use it or obstruct it for the purpose of protecting their crops.
In any view of the ease we are of opinion that the decree of the circuit court was right, and should be affirmed.
Decree affirmed.