After examining the bill of exceptions now before us, we find that it differs materially from the bill of exceptions in the case when it was formerly in this court. And the additional facts which now appear, as we think, present other and different questions, not then discussed. To their consideration we shall now address ourselves. On the former trial, it did not appear, as it does in this, that what is denominated the main road, had not been open for travel at the time of the removal of the obstruction. It now appears, that it was within enclosures and was obstructed by gates, both north and south of the place where the fence was removed. It further appears, that this road had not been worked or'repaired by the public authorities, except that a slough had been bridged in the summer of 1855, opposite the house of the path master, for his own convenience. On the former hearing in this court, nothing in the record showed that this was not an open, public, traveled highway, and that the fence removed by plaintiff in error, had not been wrongfully erected, and which therefore he had the right to remove.
Then as this road had not, after its survey and location, been opened by the proper town authorities, for the use of the public, had the defendant in error, unauthorized by them, the right to remove this fence, even if it was in the line of the road ? Assuming that all the steps required by the statute had been taken, essential to the survey and location of the road, still the 24th section of article 24 of the division entitled “ Counties,” (Scales’ Comp. 354) provides, that when a public highway shall be laid out through any enclosed, cultivated or improved lands, the owner shall have sixty days’ notice in writing, to remove his fences, and upon a failure to do so within that time, the commissioners are required to cause such fences to be removed, and to direct the road to be worked. There is no pretense that any such notice was ever given in this case. It appears from the evidence, that the branch road was also enclosed at the time of its location, and for the want of such a notice, even had every other step been taken, the commissioners had no authority to remove this fence, let it have been in the one road or the other. Nor could any other person, except the owner or those acting under him, have rightfully removed this fence, and others in doing so, became trespassers.
It is, however, urged, that Samuel Jenkins at one time, some years previous to his death, dedicated the branch road to the public as a highway. It appears that at one time he did want a road at the place where the branch road was afterwards surveyed and located, and in fencing his adjoining land, did so with reference to such a desire. William Ryan was one of the witnesses who testified to these facts, and to the further fact that the design had been abandoned before plaintiff in error purchased the land, and that the ground claimed as the branch road had been in cultivation, and that he had cut wheat on the ground in the year 1853, at the place where the fence was pulled down, which occurred in 1855. Plaintiff in error purchased the land in 1854, of William Scott and Henry Jenkins. In December of 1852, a petition for the survey and location of these roads was presented to the commissioners of highways, by a number of the citizens of the neighborhood, and of the number was defendant in error. It also appears, that whilst this branch road was. enclosed, that persons passing sometimes traveled on what is claimed as the road, and at other times in different places. Nor is there any evidence that the public ever repaired this road, or that it required no labor for its repair. From all of these facts it is apparent, that if Samuel Jenkins made the dedication, that those most likely to know the fact were not aware of it, or they knew it had been revoked before the public had accepted of the dedication. Those in the immediate vicinity, did not regard the public as having any such right, or they would not have signed the petition.
As defendant in error had as great an interest in the use of this road as any other person, he would be more likely to be informed ; and he could not have regarded it as a public highway, or he would not have joined in the petition. The evidence as it now appears in this record, we think wholly fails to establish a dedication to, and an acceptance by the public. If it establishes anything, it is only that Samuel Jenkins at one time designed to have a road at this place, and fenced his land with that view; but that his purpose was never consummated. Whether he designed that it should be a public or private way does not appear.
As regards the question of damages not having been assessed to John and Thomas Jenkins, if the road was located over any portion of their land, which does not appear, it is enough to say that the requisite statutory notice was given. If they claimed damages, they should have appeared and -made it known to the commissioners, at or before the time when the road was located,- or it may be to the supervisors trying the appeal. They had the constructive notice required, and having failed to present their claim, they must be estopped afterwards to assert it. Nor can their assignees be heard to insist upon the claim, as it was not presented in proper time. Ferris v. Ward, 4 Gilm. 499; County of Sangamon v. Brown et al., 13 Ill. 207.
The court below erred in not granting a new trial, as the evidence fails to support the verdict. The judgment is therefore reversed, and the cause remanded.
Judgment reversed.