The indictment charges specifically, that the locus in quo, the obstruction, was put, was across the highway, on a specified quarter section, and the name given to the highway, as one leading from Peoria to Knoxville, is no essential part of the description, either of the highway, or of the place obstructed. It might be stricken from this indictment without surprise to the plaintiff, or vitiating the pleading for want of certainty. The proof, however, sustained the allegation as it is, for one witness testified to the fact, that the highway mentioned, does lead from the one city to the other. But the defence, very erroneously, was predicated in part, upon the supposed necessity of the people proving, under the allegation, the laying out and establishment of one and the same continuous line of road, from the one to the other city, and known by that description. It was for this purpose we understand the county records and clerk were offered to disprove the fact of the existence of any such road.
We are not able to sympathize with, or encourage the numerous efforts that are making to overturn and destroy the public used highways, through the various counties of the State, by exceptions to the loose and imperfect minutes, records and files, kept by the Commissioners’ Courts, in the early locations of roads through a new and sparsely settled country. We shall indulge no nice, stringent or technical criticisms upon these, when in evidence, to aid in closing up used highways, nor shall we confine the evidence to this mode of proving a highway, unless it is assumed by the pleadings, but will allow resort to the usual modes of proof, by prescription from user, and dedication, in addition to documentary proof. The allegations here do not call for documentary proof.
Documentary and parol. proof were offered, from which the jury might have found the establishment of a highway at the place obstructed, or might have drawn inferences of a dedication by the owners of this tract, knowing and acquiescing in its use by the public, as such. Alvord v. Ashley, 17 Ill. R. 363. The road was petitioned for by plaintiff. It was opened in 1842, and openly and notoriously used and worked on as such, and as far as could be, was in the actual occupation and possession of the public, for that purpose, and claimed as such. We can make no distinction between governmental and individual ownership, nor between non-resident and resident proprietors, as to the operation and effect of such occupancy, claim and user upon their respective rights. They are presumed to have, and must alike take notice at their peril. The power of the government to establish highways, and acquire easements on the land for that purpose, is paramount to the public or private ownership of the soil, without respect to the character of the proprietor.
The patentee and his vendees made no objection, and asked no damage. In 1849 the land was conveyed to plaintiff’s wife, and still we hear no complaint, until April or May, 1853, when instead of asking an assessment of damages, he closed up the highway by a fence. If upon the settling of the country, and the inclosure of the wild lands, it be found, that the early laid highways are injuriously and inconveniently laid, the proper remedy is by application to the county courts or township boards, who may have the authority, not only to open, and vacate, but to relocate the whole, or particular portions.
The evidence of non-resident proprietorship, was therefore properly excluded. That offered as rebutting by the prosecution was properly admitted, and the jury were justified in giving to it its due weight not only as rebutting, but in establishing the prosecution. This is not of that class and character that would confine its application to rebutting alone, because the court might refuse to open the case for it in chief. The instructions given for the prosecution are correct, and those refused to the plaintiff should not have been given. We might presume that their true intent was in accordance with the positions assumed in the others refused, and this was doubtless the view taken of them by the court below, and in that sense their rejection was proper.
A highway may be legally laid out and established by public use, and recognition of it by the proper authorities, which is " sufficiently evidenced by ordering it to be, and having it worked on and repaired, when so laid out and established with the express or implied assent of the owner of the land, or the assessment and payment of damages. And juries may infer a dedication from length of user, and from acquiescence by the owner. But while no presumptions or inferences can be made against those who have neither actual or constructive notice of such user, every one is presumed to know of and notice such use of a way over his land. Warren v. Trustees of Jacksonville, 15 Ill. R. 240-242; Greenleaf Ev., Sec. 662, and notes.
Judgment affirmed.