This was an action of trespass quare clausmi fregit, brought by Champlin against Rees, to which the defendant pleaded, among other things, that the locus in quo was a common or public highway, across which the plaintiff had erected a fence, and that he removed the rails, etc., as he had a right to do. It was admitted by the parties that he did break and enter, but that, in doing so, he did not go off the surveyed line of the road mentioned in his plea, and that he did no unnecessary damage.
The- question before the jury was as to the locus intquo being a public highway, and they found the issue for the defendant.
Certain instructions were asked for by the plaintiff, one numbered eight, which the court modified, and then gave to the jury, to which the plaintiff excepted. The instruction as asked was as follows : “ If the jury believe, from the evidence, that the public, from 1832 until the commencement of this suit, had ceased to use the said surveyed road, and that the public had adopted another and different line of travel voluntarily, and by so doing, had intended to abandon said surveyed road, as well as all other roads upon the same line, then the jury should find for the plaintiff, even although no other public highway was legally laid out from Ottawa to Dayton by the public authorities.”
The instruction was so modified as to include the idea that, upon abandonment, “ the public had acquired the legal right to use of such other line of travel,” then they should find for the plaintiff.
We think the modification was a very necessary and proper one, for it does not follow because the public have adopted another and different line of travel voluntarily, that they have, therefore, acquired the right to use such newly adopted line.
It is true the public can be charged with abandonment of a road, but the proof to establish it must be strong enough to establish another line as the road.
A road is of public necessity, and is indispensable to public convenience. It cannot, therefore, be alleged that they have abandoned such an indispensable necessity, without showing they have acquired another in lieu of it.
We think the true principle is, that a road, such as the one in question is claimed to be, laid out and established by the public authorities, must remain such until it is vacated by the same authority, the mode for doing which is plainly pointed out in the statute (R. L. 1845, chap. 93, title “ Roads,” secs. 10, 19), or be abandoned by non-user, on acquiring the legal right to another road, or the necessity for another road having ceased to exist. The instructions given on the part of the defendant recognize this principle, and though liable to the objection we have before made (Merritt v. Merritt, ante, 65), that an argument is injected into them, they declare the law.
We think the objections to the legality and validity of this road have all been considered and answered by this court in former cases. Nealy v. Brown, 1 Gil. R. 10 ; Ferris v. Ward et al., 4 ibid. 499; Dumass v. Francis, 15 Ill. R. 543; Louk v. Woods, ibid. 256 ; County of Sangamon v. Brown et al., 13 ibid. 207 ; Dimon v. The People, 17 ibid. 416.
We think the evidence establishing the fact that the locus in quo was a public highway, and the evidence of an abandonment of it by the public, is of such a character as to justify the verdict, and seeing no error in the instructions given by the court to the jury, the judgment is, therefore, affirmed.
Judgment affirmed.