#### Town of Mattoon, Plaintiff in Error, v. Z. N. Elliott, Defendant in Error.

(Not to be reported in full.)

Abstract of the Decision.

1. Roads and bbidqes, § 71 * —when town estopped by resurvey of road by highway commissioners. Where highway commissioners upon petition of landowners have the location of a road resurveyed and approve the report of the surveyors, the town is estopped to prosecute a suit to recover a penalty from an abutting owner for building a fence on a line which was established by the resurvey as the boundary of the road.

2. Estoppel, § 94 * —when applicable to municipal corporations. The doctrine of estoppel in pais applies to municipal corporations, but the public will only be estopped or not as justice may require.

Error to the Circuit Court of Coles county; the Hon. William B. Scholeield, Judge, presiding.

Heard in this court at the October term, 1913.

Affirmed.

Opinion filed December 27, 1913.

Certiorari denied by Supreme Court (making opinion final),

Statement of the Case.

Action by Fred Block, Sr., in the name of the Town of Mattoon against Z. N. Elliott to recover a penalty for the alleged obstruction of a highway under section 74, ch. 121, B. S., J. & A. ([ 9703. The commissioners of highways refused to bring the suit and an owner of land abutting the highway caused the suit to be brought. From a judgment nil capiat in favor of defendant, plaintiif brings error.

Jambs W. and Edward C. Craig, Donald B. Craig and Charles C. Lee, for plaintiff in error.

Bryan H. Tivnen and Henry A. Neal, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

Mr. Justice Thompson

delivered the opinion of the court.