Jennings v. Scott , 87 Ill. App. 459 ( 1900 )

Mr. Justice Burroughs

delivered the opinion of the court.

The record in this case shows that the amended petition filed in the Circuit Court of Edgar County, by appellants, as residents and taxpayers of their township in that county, against the appellees as commissioners of highways of that township, prayed for a peremptory writ of mandamus compelling appellees, as such commissioners, to remove or cause to be removed, a certain fence alleged to be an obstruction upon a certain described highway of said township, of which appellees had notice, but refused to remove it or cause it to be- removed.

The appellees demurred to the petition as amended, and it being sustained, appellants abided by their amended petition and the court dismissed it, rendering judgment accordingly; to reverse which, appellants prosecute this appeal.

Under the facts stated in the amended petition, which were admitted by demurrer, it was the clear duty of appel lees to have caused the obstruction named in the petition to be removed. Brokaw v. Comrs. of Highways, 130 Ill. 482.

Appellees contend in this court, that the highway claimed to be obstructed in the petition, is not described with sufficient certainty, as several routes would answer such description. The amended petition, we find, does definitely fix the termini of the highway in question, approximates its width and gives its general direction; and in the absence of even a claim that there is more than one highway which might answer equally as well to the description given, it seems to us that it would be unreasonable to conclude that a person of ordinary intelligence would not easily discover the highway intended, and find the obstruction described in the petition, if it was there as alleged.

We think the Circuit Court erred in sustaining the demurrer to the amended petition, for which reason its judgment will be reversed and the case remanded with directions to overrule the demurrer to the amended petition, and then proceed as to law and justice appertain.

Reversed and remanded with directions.