dissenting:
I disagree with the majority opinion in this case. The only question involved is whether the superior court erred in dismissing the appeal.
Section 115 of chapter 79 of' the Revised Statutes provides for an appeal from the judgment of a justice of the peace in all cases except on judgments confessed. The ■section under consideration expressly declares that the judgment of the justice of the peace shall be final and conclusive. It is contended that this provision is void because unconstitutional, and that an appeal therefore lies from the judgment of the justice of the peace under section 115 above mentioned. In my judgment the legislature has no power to make final the judgment of a justice of the peace depriving a suitor of his freehold. In criminal cases, and in cases involving either a franchise, a freehold or the validity of a statute, the appellate jurisdiction of this court is constitutional. Section 11 of article 6 of the constitution, in providing for inferior appellate courts, declares that from such courts appeals and writs of error shall lie to the Supreme Court in all criminal cases, and cases in which a franchise or freehold or the validity of a statute is involved. In all such cases the writ of error from this court to the Appellate Court is a writ of right under the constitution, of which the party cannot be deprived by legislation. (Young v. Stearns, 91 Ill. 221; Smith v. People, 98 id. 407.) It was the manifest intention of the framers of the constitution that no freeholder should be deprived of his freehold without an opportunity for having the proceeding by which it was taken from him reviewed in this court, and that the same right should exist in each of the other cases mentioned. While the provision applies, in terms, only to appeals from and writs of error to the Appellate Court, yet it is reasonably implied that in all the cases named the right of the party to a review by this court of the decision of the lower court is recognized and preserved. It is scarcely to be supposed that the makers of the constitution would carefully preserve from legislative interference the right to review the decisions of the Appellate Courts in the classes of cases mentioned, while leaving to the legislature full power to make the judgments of inferior courts and justices of the peace final in the same classes of cases. The majority opinion, however, expressly holds that the freehold was not involved in the proceeding before the justice of the peace, and in so doing is directly at variance with the previous decisions of this court. The right of way for the work of the drainage district sought to be acquired by this proceeding was a perpetual easement in appellant’s land and was therefore a freehold. Chaplin v. Commissioners of Highways, 126 Ill. 264; Oswald v. Wolf, id. 542; Tinker v. Forbes, 136 id. 221;. Chronic v. Pugh, id. 539; Town of Brushy Mound v. McClintock, 146 id. 643; Waggeman v. Village of North Peoria, 160 id. 277; Village of Crete v. Hewes, 168 id. 330; Farrelly v. Town of Kane, 172 id. 415; Wessels v. Colebank, 174 id. 618; Perry v. Bozarth, 198 id. 328; Funston v. Hoffman, 232 id. 360.
Chronic v. Pugh, supra, was a proceeding under sections 4 to 10 of the Farm Drainage act to obtain the right to construct a tile drain across the defendant’s land. The trial and judgment in such proceeding and the rights acquired and lost by the respective parties differ in nothing substantial from the trial and judgments and rights acquired and lost by the proceeding now under review. In considering the question whether the appeal had been properly brought from the trial court directly to this court it was said: “Clearly the successful issue of a proceeding of this character vests in the plaintiff an estate in fee in the easement sought to be acquired. This, as we have frequently held, is a freehold estate, within the meaning of the statute fixing the relative appellate jurisdiction of this court and the Appellate Court.”
In Chaplin v. Commissioners of Highways, supra, this court had under consideration the eighth section of the statute in relation to roads and bridges, which authorizes commissioners of highways to enter upon any land adjacent to any highway in their town “for the purpose of opening any ditch, drain, necessary sluice or water-course whenever it shall be necessary to open a water-course' from any highway to the natural water-courses, and to dig, open and clean ditches upon said land for the purpose of carrying off the water from said highways or to drain any slough or pond on said highway.” Said section provides that in case of the failure of the commissioners to obtain the consent of the owner of such lands to the cutting of such ditches a proceeding may be instituted before a justice of the peace of the county for the purpose of having the damages which such owner may sustain by reason of the digging or opening of such ditches or drains assessed by a jury. The mode of proceeding differs in no essential particular from that now under consideration. The court said (p. 272) : “As we have already assumed, the proceedings by which the commissioners of highways have attempted to acquire the right to enter upon the complainant’s land for the purpose of constructing and maintaining a drain can be justified only as an exercise of the right of eminent domain, which is the right existing in the State of taking private property for public uses on making just compensation. If the proceedings are effectual, as the defendants claim, a permanent interest in the complainant’s land, in the nature of a perpetual easement—a freehold—has been taken, and upon payment of the damages assessed, will be vested in the proper municipal authorities, for the use of the public.”
The case of Perry v. Bozarth, supra, came to this court by appeal from a judgment of the Appellate Court reversing a judgment of the circuit court. It was certiorari to review the proceedings of commissioners of highways in vacating a road and establishing a new one. The judgment of the Appellate Court was reversed, and it was directed to dismiss the appeal because a freehold was involved. The mode of proceeding by which commissioners of highways obtain the right of way for a public highway is in every essential particular the same as that followed in this proceeding. The court said: “The interest acquired in the lands of others by proceedings taken by highway commissioners for the establishment of a public highway is a perpetual easement, and the right and interest of the highway commissioners, as the representatives of the public, in an established public highway, is a perpetual easement, and a perpetual easement in the lands of another is a freehold.”
It is true that the justice enters only a judgment for the amount of the damages assessed. But so he did, also, in the cases just cited, and this court held in those cases that a freehold was involved in the proceedings before the justice of the peace. In this case, prior to the proceedings before the justice the appellees had no right to enter upon appellant’s land. After those proceedings they had the right, upon payment of the damages awarded, to enter upon his land and construct and perpetually maintain a drain thereon. Whence did they acquire this right? Not from any grant from the appellant; not from any source but the proceedings before the justice. As a result of those proceedings appellees have, what never existed before, a perpetual easement in appellant’s land. How can it be said, then, that the proceedings do not involve a freehold ?