Samuel Farlow v The Town of Camp Point Lawsuit

Source: Reports Of Cases At Law And In Chancery
Written: 1900

Samuel Farlow

v.

The Town of Camp Point.

Opinion filed June 21, 1900.

1. Highways—notice should show what part of road is claimed to be obstructed.
One charged with obstructing a highway is entitled to be advised, from the
commissioners' notice, what part of the road he is charged with obstructing.

2. Same—when description of place obstructed becomes material. Where highway
commissioners particularly describe the location of the road obstructed, and
nature of the obstruction, in their notice and complaint, such description
becomes material and must be proved.

3. Same—when instructions in a road obstruction case are erroneous.
Instructions in a case for obstructing a road are erroneous which hold the
defendant guilty if any part of his fence is in the road, where the written
notice and complaint charge that the entire fence is an obstruction, and the
plaintiff has attempted to prove such fact but has failed to prove the
location of the road as described in such notice and complaint.

4. Variance—when question of variance is not waived by a failure to object. A
defendant in a road obstruction case does not waive his right to raise the
question of variance between the proof and the written notice and complaint by
not objecting at the trial, where he had no opportunity to do so, the
plaintiff having attempted to prove the case made by the complaint, and
claiming only in the instructions the right to recover upon less proof.

5. Evidence—hearsay evidence of defendant's guilt is not admissible. Testimony
by plaintiff's witness in a road obstruction case that he overheard the party
who complained to the commissioners state that the defendant ought to be made
to move his fence back as he was in the road, is not admissible where
defendant was not present at such conversation.

Appeal from the Circuit Court of Adams county; the Hon. John C. Broady, Judge,
presiding.

C. A. Babcock, and Hamilton & Woods, for appellant.

Govert & Pape, for appellee.

Mr. Justice Cartwright delivered the opinion of the court:

This suit was begun by appellee, against appellant, before a justice of the
peace, by filing a complaint of the commissioners of highways of the town of
Camp Point, charging appellant with obstructing a highway of said town and
failing to remove the obstruction after he had been ordered by said
commissioners to remove the same. After a change of venue to another justice
of the peace there was a trial by jury, and appellant was found guilty and
judgment was rendered against him. On appeal to the circuit court there was a
verdict of guilty, and judgment was again rendered against him for $25 and
costs.

The defendant owns the north-east quarter of section 27, in the town of Camp
Point, and a public highway half a mile long runs north and south between said
quarter and the north-west quarter. The dispute is as to the width of that
road. On July 1, 1897, notice was served upon defendant reciting that there
was an obstruction in said road, "consisting of a fence running the whole
length of said quarter north and south and about seven or eight feet east of
the west line of said quarter," and notifying him that unless he should remove
the same within ninety days from the service of the notice the commissioners
would proceed against him for the obstruction of a public highway. The
complaint filed contained five paragraphs, in each of which the alleged
obstruction was described as "a fence running the whole length of said quarter
north and south and about seven or eight feet east of the west line of said
quarter." The suit was commenced March 10, 1898.

The whole fence charged to be an obstruction was built of rails. The evidence
for both parties at the trial was that the south 104 rods of the fence had
remained m the same place that it stood at the time of the notice and trial,
since the year 1863 or 1864, and that the remainder of the fence had stood in
the same place since the year 1884. About this there was no dispute. It was
also an uncontroverted fact that prior to 1884 the fence from the north end of
the south 104 rods to the north line of the quarter did not follow a direct
line. Just north of the 104 rods there was a swale or low place, and when the
fence was extended north there was a jog at this point and the fence deflected
eastward six or eight feet around this low place, and from there north the
fence was crooked, running at varying distances a few feet eastward from a
direct line with the south 104 rods. In 1884 the entire fence was re-built,
the south 104 rods on the same line where it had previously been and the fence
north was straightened and brought into line with said south portion. The only
controversy as to the location of any part of the fence at any time was
whether the south 104 rods was set over to the west in 1863 or 1864.

The history of the road as shown at the trial is as follows: It was never laid
out as a public highway. When the north-west quarter was unenclosed there had
been a road running diagonally across it from the south-west to the north-
east, called the Columbus-Pulaski road. This old road was closed up in 1848 or
1849, and fences were built so as to leave a lane open between these two
quarters, running from the south northward, and the road in question began to
be used. The land owned by defendant was then owned by his father, William
Farlow, and the fence on that land ran north from the south line 104 rods. The
fence on the other side of the lane did not extend quite so far north. About
that time some work was done in the low place about the north end of this
fence, but the evidence did not show where the travel went north of that low
place. William Farlow died in 1858, and in the partition of his estate the
part so fenced was set off to his widow. In 1863 or 1864 her son, George
Farlow, a brother of defendant, re-built this fence. Two witnesses for the
plaintiff, who lived on the other side of the road, testified that the fence
was then set out ten or twelve feet into what had been the lane and which is
claimed to have been a public road. George Farlow, who built the fence, and
his brother, the defendant, testified that it was laid in the same worm or
line as the old fence, and that all that was done was to relay the fence in
the same worm, with new rails in the bottom and new chunks under the
intersections. This fence has remained in the same place ever since. The forty-
two acres in the northwest corner of the north-east quarter, lying north of
the enclosed land set off to the widow, was assigned to George Farlow. He went
into the army in July, 1861, and remained eleven months. During that time his
brother extended the rail fence northward 38 or 40 rods. At the starting point
the jog or deflection to the east was made for the apparent purpose of
avoiding laying the fence through the mud, and from there on north it was in
an irregular line, varying a few feet one way or the other, without any
apparent design or attempt to follow a particular line. The fence was built
without the direction or knowledge of the owner, George Farlow, and he
testified that when he came home he found it and just let it stand where it
was, supposing it was intended as an extension of the other fence. Afterward,
in 1866, he continued the same kind of a fence up to the north line.

The claim of the plaintiff is that the entire fence is an obstruction of a
public highway; that the south 104 rods was obstructed in 1863 or 1864 by
setting the fence out, and the obstruction has remained there ever since, and
that the north part was obstructed in 1884, when the crooked line was
straightened out and the north part of the fence put in line with the south
part. It is contended that the land where this fence was put was a highway
throughout its entire length, both by prescription and dedication, and
instructions were given to the jury upon each of those theories.

It will be seen from the undisputed facts that there was no highway by
prescription, either where the south 104 rods of the fence was located or at
the north end, where the fence was first built and the land enclosed in 1866.
According to the evidence for the plaintiff the road had not been in existence
and there was no user of it twenty years before the south 104 rods of the
fence was re-set, in 1863 or 1864, so that there was no highway by
prescription when the alleged obstruction was made. If there was a highway
there at all it was created by dedication. According to the evidence for the
defendant the fence has always stood in the same place where it was built in
1848 or 1849, and there was never any user at the place claimed to be
obstructed. The north end was not enclosed until 1866, and the evidence does
not show where the travel went before that time. There is nothing in the
record to show whether there were connecting roads north of this or where they
ran. At any rate, if there was any use of the land it was merely passive, and
not sufficient to show claim of right on the part of the public or to
establish a right by prescription. Town of Brushy Mound v. McClintock, 150
Ill. 129.

The fifth instruction given at the request of plaintiff was on the subject of
prescription, and was as follows: "The court instructs the jury that if they
believe, from the evidence in the case, that the road testified to by the
witnesses had, immediately prior to and up to the year 1884, been continuously
and uninterruptedly used for twenty years or more as a public road, adversely,
under claim of right, by the public, for the full width of the space between
the fences, if any, as they were prior to said year located, and that such use
was with the knowledge and acquiescence of the owners of the land adjoining
said road, then the law presumes a grant or dedication of the ground so
occupied by the public to the use of the public for a public road, and in such
case the said road, for the full width of the space between the fences, if
any, as they were located prior to said year 1884, should be found by the jury
to have been, immediately prior to and up to said year 1884, a public road
established by prescription."

Inasmuch as there was no evidence tending to prove that the public had used
the disputed portion where the south 104 rods of the fence stood, at any time
for twenty years, but even the evidence for the plaintiff showed that they had
not, the instruction should not have been given. Furthermore, there was no
evidence that the public had used the north portion, where the fence was built
in 1866, for twenty years before 1884, and as to that part the instruction was
not based upon any evidence.

The sixth instruction given at the request of plaintiff was as follows:

"The court instructs the jury that if they believe, from the evidence in the
case, that the road testified to by the witnesses was from 1863, and
thereafter for more than twenty years, fenced on both sides and was used and
traveled by the public without interference by the abutting owners, and that
during said period of twenty years such use by the public was adverse, under
claim of right, continuous and uninterrupted, and that during said period the
right of the public to use the road at all times and for any purpose was not
called in question, and that the owners of the land on each side of the road
had knowledge of such use of it by the public and acquiesced in such use for
the period of twenty years above named, and that the line of travel was,
during said period, for the width of the road between such fences, then the
court instructs the jury that they should find that at the expiration of said
period of twenty years said road, for the width of the same between such
fences, became and was a public road by prescription."

This instruction, too, was not based on the evidence. There was no evidence
whatever that the road was fenced from 1863 for more than twenty years, but
plaintiff proved that the fence was not extended to the north line until 1866,
and also proved that the disputed portion, where the south 104 rods of fence
is located, was not used or traveled by the public at all after 1863 or 1864.
The plaintiff's two witnesses testified that the fence was re-set in 1863 or
1864, so as to prevent any travel there.

As before stated, there was a direct conflict in the testimony as to whether
the south 104 rods of the fence was set out from the old line when it was re-
built, in 1863 or 1864, two witnesses testifying for the plaintiff that it was
so set out and two for the defendant that it was set in the same place as
before. The jury were called upon to decide that question, and any error in
the admission of evidence respecting it was necessarily of grave importance to
the parties. It was about the only disputed fact in the case. The land on the
opposite side of the road was owned by R. L. Booth, and on the cross-
examination of the town clerk defendant's counsel asked the witness who made
the complaint to the commissioners on which the prosecution was commenced, and
the witness answered that the complaint was made by R. L. Booth. On re-direct
examination the plaintiff's counsel asked the witness what Booth said when he
made the complaint. Defendant's objection was overruled and the witness was
permitted to state that Booth said the defendant ought to be made to move his
fence back, and that defendant was further in the road than he was. The
defendant was not present, and it was error to admit to the jury the statement
of Booth as to the merits of the case. The admission of hearsay evidence that
the defendant was guilty was wrong, and must necessarily have been prejudicial.

If the evidence for the defendant was true and the south 104 rods of the fence
was in the place where it was originally built when the lane was opened, the
defendant could not be required to remove it, and as to that part of the road
had committed no offense. The instructions given for plaintiff authorized the
jury to find him guilty of the charge made against him, of failing to remove
the obstruction after notice, if any part of the fence throughout its whole
length was in the public highway.
Under the instructions the jury might find the defendant guilty although they
believed his evidence as to the south 104 rods, and also believed that there
was no highway where the fence built in 1866 was re-set at the north end, if
they should believe that the portion of the fence built in 1861 or 1862, from
the jog northward, constituted an unlawful obstruction when moved on the
straight line in 1884. The jury were told that if defendant had moved any part
of the fence within the limits of the public road, and had been notified to
remove said fence by the commissioners of highways and had failed to do so,
plaintiff was entitled to recover. The notice served described the fence as
running the whole length of the quarter section. It required him to remove the
whole fence, and the written complaint charged that the obstruction consisted
of the whole fence, but the instructions directed a verdict against him if any
part of the fence was in the public road. The party charged with obstructing a
road is entitled to understand from the notice what place he is charged with
having obstructed, so that he may ascertain what his rights are. (Ferris v.
Ward, 4 Gilm. 499.) In this case the parties saw fit to give a written notice
and to file a written complaint. The description in the notice and complaint
was not a general description of a road charged to be obstructed, but they
particularly described the part of the road obstructed and the nature of the
obstruction, and the description was material. Martin v. People, 23 Ill. 395;
Town of Lewiston v. Proctor, 27 id. 414; Houston v. People, 63 id. 185.

It is argued that defendant should have raised the question of variance of the
proof from the notice and complaint in the trial court, and that he cannot
raise the objection here that the evidence only tended to prove that a small
part of his fence was in the road. There was no time or place when he could
have raised that question in the trial court. The plaintiff endeavored to
prove the complaint as made and that the entire fence constituted an
obstruction. It was only in the instructions that the jury were authorized to
find the defendant guilty although the complaint was not proved as made. The
plaintiff having made a complaint in writing giving a particular description
of the obstruction and the place obstructed, was bound to prove it.

For the errors indicated the judgment of the circuit court is reversed and the
cause remanded.

Reversed and remanded.

Additional Comments:
Reports of Cases at Law and in Chancery Argued and Determined in the Supreme
Court of Illinois, Volume 186, Containing Cases in which Opinions were filed
in June and October, 1900, and Cases in which Rehearings were denied at the
October term, 1900. Isaac Newton Phillips, Reporter. Springfield: 1900.

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