#### Commissioners of Highways v. Isaac L. Elwood.

I. Freehold—Involved in Proceedings to Lay Out Highways.—A contest in chancery to enjoin the commissioners of highways from laying out a road through the lands of the complainant, necessarily involves a freehold where the question is whether the commissioners had, by proper proceedings, divested the complainant of a freehold estate.

Bill for an Injunction.—Appeal from the Circuit Court of DeKalb County; the Hon. Charles A. Bishop, Judge, presiding.

Heard in this court at the April term, 1901.

Appeal dismissed.

Opinion filed July 12, 1901.

J. B. Stephens, attorney for appellants.

Carnes & JDunton, attorneys for appellee.

Mr. Justice Waterman

delivered the opinion of the court.

This was a proceeding growing out of an attempt by the commissioners of highways to lay out and establish a road through the property of appellee, being a bill by appellee to enjoin said commissioners from removing the fences of appellee, and from laying out, establishing, grading or opening said road as a public highway, and from interfering with the complainants’ possession of the premises upon which said road was located.

Upon the hearing of the cause it was stipulated that the complainant (appellee) was the owner of the land in question, and had been in possession of the same for more than three years next prior to the filing of the bill; that the commissioners contemplated grading the road a portion of its length, and were about to do so; that the commissioners *240had removed the fences of complainant, as alleged in the bill, and that the commissioners were about to grade the road.

• The commissioners claimed the right to establish a road over the premises of appellee, and that the proper proceedings, authorizing them to do so, had been had.

The contest in the court below, therefore, involved necessarily a freehold; that is to say, the question submitted to the court was whether appellee had, by proper proceeding, instituted and carried on by the commissioners of highways, been divested of a freehold estate, which it was admitted theretofore he had in and to the premises over which said road was claimed to have been established. An appeal from the decree of the court below, therefore, does not lie to this court. Chaplin v. Commissioners of Highways, 126 Ill. 264-271, 274.

The appeal is dismissed.