#### Town of Polk, Appellee, v. Albert E. Ghent, Appellant.

(Not to he reported in full.)

Appeal from the Circuit Court of Macoupin county; the Hon. James A. Ckeigiitost, Judge, presiding. Heard in this court at the April term, 1916.

Affirmed.

Opinion filed October 13, 1916.

Rehearing denied December 2, 1916.

Statement of the Case.

Action by the Town of Polk, plaintiff, against Albert E. Ghent, defendant, to recover a penalty for the obstruction of a highway by the defendant. From a judgment against him for three dollars' and costs, defendant appeals.

Defendant owned a forty acre tract of land in Polk township, Macoupin county, and for many years a public highway, created by prescription, angled across the north portion thereof. He and eleven others petitioned the highway commissioners to change the location of the road so that it would run directly across the north portion of the tract along the section line. The com*452missioners granted the petition and defendant deeded to them the north twenty feet of his ground and purchased for them the south twenty feet of the tract of land immediately north of his land, the purpose being to make the road forty feet wide. After the new highway was laid out, defendant fenced up the portion of the old highway which had run diagonally across his land. It appeared that the new highway was impassable because nothing was done towards making it fit for use for public travel. It ran over a steep hill and the stumps and other obstructions had not been removed therefrom. The commissioners claimed that it was a part of the agreement between them and defendant that he would put the new road in a passable condition, while he denied that he ever made such an agreement. No steps were ever taken to vacate the old highway.

Peebles & Peebles, for appellant.

Thomas Rinaker, for appellee.

Abstract of the Decision.

1. Roads and beidges, § 125 * —how highways may not be relocated. A public highway can only be vacated in the manner provided by statute, and commissioners of highways have no power to bargain with a landowner to close up an old highway and open a new one in exchange therefor.

2. ' Roads and beidges, § 206*—what not a defense in action for penalty for obstructing a highway. No agreement or contract made by a landowner with highway commissioners to close up an existing highway running through his land and to open up a new one, even though the landowner purchases and dedicates to the public land for the new highway, can be a defense to a suit against such landowner to recover a penalty for obstruction by him of the old highway by closing it up.

*

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

Mr. Justice Eldredge

delivered the opinion of the court.