Deer v. Code

Per Curiam.

Appellant owned the S. W. 1/4 and the W. 1/2 S. E. 1/4 of section 4, in the town of Sidney and county of Champaign. Some time in 1882 a petition was presented to the commissioners of highways of said town to lay out a road from the northeast corner of the W. 1/2, N. W. 1/4 of section 10, town west on the section line between three and ten, and four and nine, to a north and south road about a quarter mile west of his residence. The prayer of the petition was granted, plat and report of survey returned, damages assessed to appellant, and the road ordered to be laid out on said line according to said petition and survey. The record of these proceedings was taken by certiorari to the circuit court, where the writ was quashed, and that judgment was affirmed on appeal in the Appellate and Supreme Courts. In April, 1883, appellees, who include the commissioners of highways, proceeded to open said road, and in so doing removed some fences and timber of appellant, which were within its boundaries as staked by the surveyor. Appellant rebuilt the fences, which the commissioners again removed. They also declared their intention to remove them as often as they should be rebuilt, and instituted suits against him for obstructing the highway and for maintaining obstructions therein. He then filed the bill in this case to enjoin them upon the ground that the road they are attempting to open is not on the section line, but north of it about fifty feet at his east line and nearly 200 at his west line. This is the sole issue of fact made by pleadings, and upon the proofs introduced the circuit court dissolved the preliminary injunction and dismissed the bill.

The evidence is conflicting. Much of it bears so remotely upon the issue that the conclusions reached require several steps of inference more or less uncertain, and are therefore more or less conjectural. It is not easy to determine on which side is the preponderance. In this condition considering that the time was not agreed on; that' some of the original monuments were gone; that the most careful survey, made upon correct principles, could not certainly ascertain the exact line as first established; that the commissioners intended to lay the road upon the true section line; that they used the best known means to that end and proceeded entirely according to the statute; that the surveyor employed was experienced and competent, and that he and the commissioners and petitioner believed it was so laid and in conformity with the petition and order, we are not disposed, notwithstanding our doubts about the line, to disturb the finding of the chancellor.

Decree affirmed.