People ex rel. Brokaw v. Commissioners of Highways 29 Ill. App. 115

The People ex rel. Abraham Brokaw v. Commissioners of Highways.

Highways—Obstructions—Remedies—Mandamus—Statutes.

This court affirms the judgment of the court below, sustaining a demurrer to a petition for a writ of mandamus to compel commissioners of highways to remove an obstruction in a highway, the statutory remedies being complete and effective.

[Opinion filed September 21, 1888.]

Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding. .

Messrs. James S. Ewing and James S. Seville, for appellants.

The commissioners of highways permitted a party to build a fence across said road, and have persistently refused to cause said obstruction to be removed; and though notified in writing by appellant to act in the matter, absolutely refused to take any action with reference to the road whatever.

It is conceded by the demurrer to the petition that appellees refused to perform any part of their duty; not only that, but lent the sanction of their permission to the violation of the law.

The question here involved is different from that made in the County of St. Clair v. The People ex rel., 85 Ill. 396, and Commissioners, etc., v. The People, 66 Ill. 339, or any other case decided in this State.

We can readily understand how mandamus might not be the proper remedy Ci to remove the obstructions of long standing, maintained as a matter of right by land owners, and believed by the right authorities not to be in the limits of the highway;” but how it could be said it is not the duty of the highway commissioners to keep the' public roads free from *116obstructions under all the provisions of the law above referred to, we are unable to understand.

Messrs. Tiptoe & Beaver, for appellees.

“ When an indictment will lie for obstructing a public' highway, and will afford a remedy convenient, beneficial and effectual in its nature, as a mandamus to compel the opening of the highway, a mandamus will not be awarded,, and when it appears that a highway has been obstructed, after having been opened and traveled by the public, the proper remedy is by a prosecution, under'the statute, against the party causing the obstruction, and not by mandamus to compel the commissioners of the highways to remove the obstruction and -open the road.” Commissioners Town of Hale ex rel. v. Welch, 73 Ill. 204.

And to the same effect see People v. Curyea, 16 Ill. 547; People ex rel. Kloppe, 92 Ill. 138; Kloppe v. Stanley, 190 Ill. 197; Hyde Park v. Thatcher, 13 Ill. App. 616; Commissioners v. People, 2 Ill. App. 27; People v. Dulaney, 96 Ill. 512; People v. Village of Crotty, 93 Ill. 186; Trustees v. Kay, 8 Ill. App. 32; Mulliner v. Brownson, 114 Ill. 512; Commissioners v. People ex rel. Brokaw, 19 Ill. App. 253; S. C., 118 Ill. 339.

The court in cases of mandamus may, in its discretion, refuse to grant the writ when the effect of granting the same will throw on the public the burden of repairing the road, which may be of little or no benefit to the public, and of peculiar benefit to the land owner or land owners along the line.

In the case of Supervisors v. People, 16 Ill. App. 309, the court say: “ The right of the party asking for a writ of mandamus must be unquestionable. That this is the settled law is beyond controversy. Green v. The People, 45 Ill. 225; County of St. Clair v. The People, 85 Ill. 396; People v. Town of Clayton, 88 Ill. 44; People v. Davis, 93 Ill. 133.”

While it is true that they are not bound to show that they have no other remedy, yet it must be the law, that a man, under the statute, broad and liberal as it is, can not bring mandamus on all occasions, but must show a proper cause for *117 mandamus under the decisions, and unless he does so he is not entitled to the writ, and the court will consider the question whether or not there are other and better remedies open to him.