{ "id": 2936427, "name": "The People ex rel. Commissioners of Highways v. The Board of Supervisors of Madison County", "name_abbreviation": "People ex rel. Commissioners of Highways v. Board of Supervisors", "decision_date": "1888-05-09", "docket_number": "", "first_page": "9", "last_page": "27", "citations": [ { "type": "official", "cite": "125 Ill. 9" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "8 Ind. 504", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1465054 ], "opinion_index": -1, "case_paths": [ "/ind/8/0504-01" ] }, { "cite": "7 Bush, 652", "category": "reporters:state", "reporter": "Bush", "opinion_index": -1 }, { "cite": "37 Vt. 40", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4432829 ], "opinion_index": -1, "case_paths": [ "/vt/37/0040-01" ] }, { "cite": "98 Mass. 219", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 710706 ], "opinion_index": -1, "case_paths": [ "/mass/98/0219-01" ] }, { "cite": "22 Mich. 104", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1314143 ], "opinion_index": -1, "case_paths": [ "/mich/22/0104-01" ] }, { "cite": "77 Ill. 488", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 821723 ], "opinion_index": -1, "case_paths": [ "/ill/77/0488-01" ] }, { "cite": "13 Allen, 129", "category": "reporters:state", "reporter": "Allen", "case_ids": [ 2114926 ], "opinion_index": -1, "case_paths": [ "/mass/95/0129-01" ] }, { "cite": "20 Wend. 150", "category": "reporters:state", "reporter": "Wend.", "opinion_index": -1 }, { "cite": "4 Hill, 369", "category": "reporters:state", "reporter": "Hill,", "opinion_index": -1 }, { "cite": "13 N. Y. 296", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 494145 ], "opinion_index": -1, "case_paths": [ "/ny/13/0296-01" ] }, { "cite": "6 Cow. 518", "category": "reporters:state", "reporter": "Cow.", "case_ids": [ 12141307 ], "opinion_index": -1, "case_paths": [ "/cow/6/0518-01" ] }, { "cite": "24 Wend. 451", "category": "reporters:state", "reporter": "Wend.", "opinion_index": -1 }, { "cite": "120 Ill. 509", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5385079 ], "opinion_index": -1, "case_paths": [ "/ill/120/0509-01" ] }, { "cite": "20 N. H. 85", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 464866 ], "opinion_index": -1, "case_paths": [ "/nh/20/0085-01" ] }, { "cite": "26 Mich. 516", "category": "reporters:state", "reporter": "Mich.", "opinion_index": -1 }, { "cite": "1 Abb. 27", "category": "reporters:federal", "reporter": "Abb.", "opinion_index": -1 }, { "cite": "17 Mass. 298", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2036142 ], "opinion_index": -1, "case_paths": [ "/mass/17/0240-01" ] }, { "cite": "53 Ill. 19", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5279413 ], "opinion_index": -1, "case_paths": [ "/ill/53/0019-01" ] }, { "cite": "100 Ill. 640", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2823640 ], "opinion_index": -1, "case_paths": [ "/ill/100/0640-01" ] }, { "cite": "23 How. 505", "category": "reporters:scotus_early", "reporter": "How.", "case_ids": [ 3463569 ], "opinion_index": 0, "case_paths": [ "/us/64/0505-01" ] }, { "cite": "9 Cush. 492", "category": "reporters:state", "reporter": "Cush.", "case_ids": [ 9454845 ], "opinion_index": 0, "case_paths": [ "/mass/63/0492-01" ] }, { "cite": "13 Pick. 431", "category": "reporters:state", "reporter": "Pick.", "case_ids": [ 2017934 ], "opinion_index": 0, "case_paths": [ "/mass/30/0431-01" ] }, { "cite": "109 Ill. 664", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2853916 ], "opinion_index": 0, "case_paths": [ "/ill/109/0664-01" ] }, { "cite": "108 Ill. 646", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 831462 ], "opinion_index": 0, "case_paths": [ "/ill/108/0646-01" ] }, { "cite": "87 N. Y. 287", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 549445 ], "opinion_index": 0, "case_paths": [ "/ny/87/0287-01" ] }, { "cite": "5 N. H. 520", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 6757144 ], "opinion_index": 0, "case_paths": [ "/nh/5/0520-01" ] }, { "cite": "13 How. 381", "category": "reporters:scotus_early", "reporter": "How.", "case_ids": [ 3362365 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/54/0381-01" ] }, { "cite": "53 Ill. 22", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "121 Ill. 616", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5386347 ], "opinion_index": 0, "case_paths": [ "/ill/121/0616-01" ] }, { "cite": "1 Wheat. 215", "category": "reporters:scotus_early", "reporter": "Wheat.", "case_ids": [ 532378 ], "pin_cites": [ { "page": "*216" } ], "opinion_index": 0, "case_paths": [ "/us/14/0215-01" ] }, { "cite": "17 Vt. 419", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 8545403 ], "opinion_index": 0, "case_paths": [ "/vt/17/0419-01" ] }, { "cite": "1 Bibb, 517", "category": "reporters:state", "reporter": "Bibb", "case_ids": [ 6688593 ], "opinion_index": 0, "case_paths": [ "/ky/4/0517-01" ] }, { "cite": "4 J. J. Marsh. 92", "category": "reporters:state", "reporter": "J.J. Marsh.", "case_ids": [ 11267867 ], "opinion_index": 0, "case_paths": [ "/ky/27/0092-01" ] }, { "cite": "4 Hill, 369", "category": "reporters:state", "reporter": "Hill,", "opinion_index": 0 }, { "cite": "24 Wend. 451", "category": "reporters:state", "reporter": "Wend.", "opinion_index": 0 }, { "cite": "120 Ill. 509", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5385079 ], "opinion_index": 0, "case_paths": [ "/ill/120/0509-01" ] }, { "cite": "20 N. H. 85", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 464866 ], "opinion_index": 0, "case_paths": [ "/nh/20/0085-01" ] }, { "cite": "100 Ill. 640", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2823640 ], "opinion_index": 0, "case_paths": [ "/ill/100/0640-01" ] } ], "analysis": { "cardinality": 1150, "char_count": 38750, "ocr_confidence": 0.489, "pagerank": { "raw": 3.9910464041271454e-07, "percentile": 0.9054149489024264 }, "sha256": "3b0fb429a87497eed0a32dff1ba79cf8f762343f959c0c13e38d26fc1853701a", "simhash": "1:9b66181304176033", "word_count": 6951 }, "last_updated": "2023-07-14T18:30:24.873964+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People ex rel. Commissioners of Highways v. The Board of Supervisors of Madison County." ], "opinions": [ { "text": "Mr. Justice Scholfield\ndelivered the opinion of the Court:\nThe answer of the jury to the third interrogatory propounded on behalf of the relators is palpably erroneous, but the question there propounded is one not proper for the determination of a jury, and the error in their verdict may, for that reason, be disregarded.\nThe amount of the assessed valuation of the taxable property of the town of Edwardsville for the year 1885, and the estimated cost of building the two bridges, are all matters of record, and therefore provable only by the record. See the several sections of the Revenue act, in relation to assessments, (Rev. Stat. 1874, chap. 120,) and.section 19 of \u201cAn act in regard to roads and bridges in counties under township organization, approved June 23, 1883.\u201d Hence the denial of the allegations of the petition, that the cost of the two bridges would be more than twenty cents on the one hundred dollars on the latest assessment roll, etc., was in the nature of a plea of nul tiel record, which the court must try by an inspection of the record. 2 Tidd\u2019s Pr. (3d Am. ed.) 741, *743; Carson v. Pearl, 4 J. J. Marsh. 92; Brody v. Commonwealth, 1 Bibb, 517; Gray v. Pinquey, 17 Vt. 419.\nThe mere ascertaining of an amount by the multiplication, addition or subtraction of given numbers, presents no question of fact for a jury. In such cases there can be but one result, and the court may either itself perform the labor of ascertaining it, or intrust that labor to any competent individual. In legal presumption, the court knows what is the result. It is upon this principle, that where an action is brought for a sum certain, or which may be made certain by computation, the court can enter judgment for the plaintiff for the amount of his damages, without a writ of inquiry. 2 William\u2019s Saunders, 107 a, notes b, c; Renner et al. v. Marshall, 1 Wheat. 215, *216; Rust v. Frothingham et al. Breese, 331.\nThe evidence before us clearly shows that this issue must be decided in favor of the relators. No objection is perceived to the record evidence, and none is insisted upon in argument. The assessed valuation of the taxable property in the town of Edwardsville for the year 1885, which was the last assessment before presenting the petition to the board of supervisors, is $1,013,423, twenty per cent upon which can only be $2026.84, while the estimated cost of the bridges is $3500.\nQuestion is made as to the sufficiency of the evidence to sustain the allegation that the major part of the road and bridge tax of sixty cents on each one hundred dollars on the last assessment roll of the town, was needed for the ordinary repair of roads and bridges in the town during the year for which the tax was levied. We think the evidence warranted the finding of the jury in that respect. But we held in Board of Supervisors of County of Macon v. People, 121 Ill. 616, that this question belongs solely to the commissioners of highways. We there said, among other things: \u201cBut whether the proposed work is necessary,\u2014that is, whether public interest and convenience demand it,\u2014or whether the major part of the sixty cents tax levied by the commissioners will be required for the ordinary repair of roads and bridges, being matters within the discretion and judgment of the commissioners, are questions the truth of which the board of supervisors have no right to inquire into or determine. With respect to these questions, all they have a right to do is to determine, from the petition presented to them, whether the commissioners have acted upon them, and decided them in the affirmative.\u201d\nComplaint is made that the court permitted oral evidence to go to the jury, of the action of the commissioners of highways, as affecting the present controversy. But the same thing which this evidence tended to prove was proved by the record of the commissioners of highways, which was read in evidence, and therefore no harm was done the respondents by the oral, evidence.\nThe objection most seriously urged, is against the answers to the fourth and fifth interrogatories propounded by the relators, and to the first and second interrogatories propounded by the respondents; and this involves, first, a question of law, as to the proper construction of the language of the charter of the city of Edwardsville, respecting a part of its boundary; and secondly, a question of fact, with respect to the location of the east end of the bridge.\nThe city is incorporated under a special charter, which, in defining its limits, uses this language: \u201cBeginning at the north-east corner of section No. 11, town 4, range 8, west of the third principal meridian, and running thence west on the section line, to Gordon\u2019s branch; thence down the meanderings of said branch, to the margin of Cahokia creek; thence down on the left hank of said, creek, to the line between sections Nos. 3 and 4, in said township, \u201d etc. It is undoubtedly the established inference of the law, that a conveyance of land bounded on a highway or river, carries the fee to the center of the highway or river, provided the grantor,\" at the time, owned to the center, and there be no words or specific description to show a contrary intent; and we shall assume, for the present, at least, that this rule is equally as applicable to boundary lines of towns, etc., as to private grants. But it is competent for the riparian proprietor to sell his upland to the top or edge of the bank of a river, and to reserve the stream or flats below high-water mark, if he does it by clear and specific boundaries. 3 Kent\u2019s Com. (8th ed.) pp. 534, 535, *434. And so we said in Rockwell v. Baldwin et al. 53 Ill. 22: \u201cIt is, however, but a presumption, for one man may own the bed of such a stream, and another may own the banks; and where, in a deed conveying land, the boundary is limited to the bank of the stream, instead of bounding it on or along the stream, the presumption must fail. The party must be controlled by the terms of his deed.\u201d There, the language, \u201cthence down the west line of the creek,\u201d was held, in connection with certain circumstances tending to show the interest of the grantor to be to that effect, to establish the boundary line on the bank of the creek.\nIn Child v. Starr, 4 Hill, 369, to which we referred as supporting the views thus expressed, Walworth, Chancellor, said: \u201cRunning to a monument standing on the bank, and from thence running by the river or along the river, etc., does not restrict the grant to the bank of the- stream, for the monuments in such cases are only referred to as giving the directions of the lines to the river, and not as restricting the boundary on the river. If the grantor, however, after giving the line to the river, bounds his land by the bank of the river, or describes the line as running along the bank of the river, or bounds it upon the margin of the river, he shows that he does not consider the whole alveus of the stream a mere mathematical line, so as to carry his grant to the middle of the river.\u201d\nIn Howard v. Ingersoll, 13 How. 381, one of the boundary lines between the State of Georgia and the State of Alabama is described as \u201crunning thence up the said river Chattahoochee, and along the western bank thereof, to the great bend thereof,\u201d etc. The court, in speaking of this language say: \u201cIf the language of the article had been, \u2018beginning on the western bank of the Chattahoochee, and running thence up the river,\u2019 and no more had been said, the middle of the thread of the river ordinarily, and without any reference to the fact that Georgia was the proprietor of the river, it would have been said to be the dividing line between the two States. But there is added, \u2018running up the said river Chattahoochee, and along the western bank thereof.\u2019 This last controls any uncertainty there may be, for if the first call or object to locate the line is the bank of the river, it is plain that the western limit of Georgia, on and along the bank of the river, must be where the bank and the water meet in its bed, within the natural channel or passage of the river.\u201d To like effect is the ruling in Daniels v. Cheshire Railroad Co. 20 N. H. 85; Bradford v. Cressy, 45 Maine, 9. See, also, Richardson, J., in arguendo in Rix v. Johnson, 5 N. H. 520; and Fire Ins. Co. v. Stevens, 87 N. Y. 287.\nNone of the cases cited in argument by counsel for respondents goes to the extent of holding that where a line is described as running on a particular bank of the stream, it in fact runs in the middle of the stream. In Piper v. Connelly et al. 108 Ill. 646, we held the plat on the hack of the deed to he a part of the description of the premises conveyed, and it showed the river\u2014not the hank\u2014to he the line. In Helmer v. Castle, 109 Ill. 664, there was a conveyance hounding the property conveyed, by a road, and it was simply held that this carried title to the center of the road; and in Trustees of Schools v. Schroll et al. 120 Ill. 509, the boundary was upon a lake or pond, and we but there repeated the general doctrine before herein recognized. In Inhabitants of Ipswich, Petitioners, 13 Pick. 431, the line is described as running, \u201cand by Ipsiuich river to a wall, * * * then by said wall,\u201d etc.; and this, it was held, made the center of the river and of the wall the line. In Cold Spring Iron Works v. Inhabitants of Tolland, 9 Cush. 492, the language is, \u201cbounding on said west branch of Farmington river, as the same runs,\u201d etc., and it was held the center of the stream was the line. And in Luce v. Cooley, 24 Wend. 451, the only remaining case cited that it is deemed necessary to notice, the language is, (after giving certain monuments,) \u201cfrom thence down the river as it winds and turns,\u201d etc., and it was held that the grantee took to the middle of the river.\nThe language here used, in regard to Gordon\u2019s branch, is within those cases, and the line there is undoubtedly the middle of the stream. But the language describing the line, when Cahokia creek is reached, is radically different, and the fact that it is so different is conclusive that it was not intended that it should convey the same meaning. Thus, the description of the line is, \u201cto Gordon\u2019s branch; thence down the meanderings of said branch, to the margin of Cahokia creek; thence down on the left bank of said creek,\u201d etc. If this does not clearly say that the line shall run \u201cdown on the left bank of Cahokia creek,\u201d then it would seem impossible to express that idea. There is no ambiguity in the language, and we are aware of nothing to prevent its having its usual effect, in this connection.\nBut it is further contended by counsel for respondents, that even if it shall be held that the line does not run in the middle' of the stream, it must be held that it runs where the water and land meet at low water. But low-water mark is not the bank of a stream. It is the point to which the stream recedes at its lowest stage. The banks of the stream, on the other hand, are \u201cthe elevations of land which confine the waters in their natural channel, when they rise the highest and do not overflow the banks.\u201d (Gould on Waters, sec. 45.) In Howard v. Ingersoll, supra, Wayne, J., in speaking of the like question there under consideration, said: \u201cThe call is for the bank, \u2014the fast land which confines the water of the river in its channel or bed, in its whole width. That is to be the line. The bank, or the slope from the bluff, or perpendicular of the bank; may not be reached by water for two-thirds of the year; still the water-line impressed upon the bank above the slope is the line required by the commissioners, and the shore of the river, though left dry for any time, and but occasionally covered by water in any stage of it, to the bank, was retained by Georgia as the river up to that line.\u201d The same line was again considered by the same court in State of Alabama v.State of Georgia, 23 How. 505, and the court repeated its former ruling, holding that the line ran on the west bank of the Chattahoochee river; that the bed of that river belonged to Georgia, and that it included that portion of the soil which is \u201calternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn.\u201d To like effect, see, also, Gould on Waters, sec. 200.\nThe rulings of the circuit court in instructing the jury were substantially in harmony with this view of the law, and we therefore think the jury were properly instructed.\nWe have given careful consideration to the evidence, and we think the clear preponderance is with the finding of the jury, that the -east end of the bridge is not within the incorporated town of Edwardsville. A mistake in the abstract makes Dr. Spillman say: \u201cAllowing the end of the new bridge to rest a foot and a half over the east abutment, which is the usual way of placing them, the east end of the bridge would be about four feet on the up-stream side, and about three feet on the lower-stream side, east of the east line of the bank of the creek.\u201d The record shows that the word \u201ceast,\u201d here italicized, should be west. The witness was asked: \u201cAllowing a foot, and a half to two feet of the new bridge to rest upon the east abutment here, I will ask you to state how far the east end of the bridge would be from the margin of the creek, on the east side of the creek?\u201d And he answered: \u201cOn the up-stream side I think it would be about something near four feet, and on the lower-stream side probably miss it as much as three feet, or two and a half, inside of this east line of the bank.\u201d The witness had, moreover, previously stated: \u201cThe margin of the east bank of Cahokia creek is east of the eastern pier or abutment of the bridge,\u201d and also that \u201cthe east end of the bridge, .if it rests on this old abutment pier, would be west of the eastern line of the bank of the creek.\u201d There is contradictory evidence on this question, but this mistake in the abstract being corrected, in our opinion the preponderance is, as before observed, with the finding of the jury.\nWe think, on the authority of The People ex rel. Commissioners v. Board of Supervisors, 100 Ill. 640, Town of New Boston v. Supervisors of Mercer County, 110 id. 197, Supervisors of Will County v. The People ex rel. id. 511, Supervisors of Stark County v. The People ex rel. 118 id. 459, and Board of Supervisors of Macon County v. The People ex rel. supra, the relators are, on the findings of the jury and the evidence before us, entitled to a peremptory writ of mandamus, as prayed in the petition, and it will issue accordingly.\nPeremptory mandamus awarded.", "type": "majority", "author": "Mr. Justice Scholfield" } ], "attorneys": [ "Messrs. Wise & Davis, and Messrs. Burroughs & Warnock, for the relators:", "Messrs. Dale & Bradshaw, and Mr. George F. McNulty, for the respondents:" ], "corrections": "", "head_matter": "The People ex rel. Commissioners of Highways v. The Board of Supervisors of Madison County.\nFiled at Springfield May 9, 1888.\n1. Bridges\u2014county aid\u2014conditions\u2014as to the relative cost and assessed valuation, how and by whom to be ascertained. On application by the commissioners of highways against a county board, to compel the latter to appropriate one-half of the cost of the erection of a bridge, the question whether the cost of the proposed bridge will be more than twenty cents on the one hundred dollars of the last preceding assessment roll, is not one for the determination of a jury, but to be found by the court from an inspection of the record evidence before it.\n2. The amount of the assessed valuation of the taxable property in a town on the latest assessment roll, and the estimated cost of the building of bridges by the commissioners of highways, are all matters of record, and are therefore provable only by the record, and should be found by the court from an inspection of the record.\n3. The mere ascertaining of an amount by the multiplication, addition or subtraction of given numbers, presents no question of fact for a jury. In such cases there can be but one result, and the court may either itself perform the labor of ascertaining it, or intrust that labor to any competent individual. In legal presumption the court knows what is the result.\n4. Same\u2014necessity for a bridge\u2014and deficit in the sixty cents tax\u2014 by whom to be determined. Whether a proposed bridge is necessary, or whether the major part of the sixty cents tax levied by the commissioners will be required for the ordinary repair of roads and bridges, being matters within the discretion and control of the commissioners, are questions the truth of which the county board have no right to inquire into. With respect to these questions, all they have a right to do is to determine, from the petition presented, whether the commissioners have acted upon them and decided them in the affirmative.\n5. Boundary\u2014as to land lying along a water-course, or public highway. It is an established inference of law, that a conveyance of land bounded on a highway or river carries the fee to the center of the. highway or river, provided the grantor, at the time, owned to the center, and there be no words or specific description to show a contrary intent.\n6. But it is competent for the riparian proprietor to sell his upland to the top or edge of the bank upon a river, and to reserve the stream or flats below high-water mark, if he does so by clear and specific boundaries.\n7. A grant running to a monument standing on the bank of a stream, and from thence running by the river on or along the river, etc., does not restrict the grant .to the bank of the stream, for the monuments, in such case, are only referred to as giving the directions of the lines to the river, and not as restraining the boundary on the river.\n8. If the grantor, however, after giving the line to the river, bounds the land by 'the bank of the river, or describes the line as running along the bank of the river, or bounds it upon the margin of the river, this will show that he does not consider the whole alveus of- the stream a mere mathematical line, so as to carry his grant to the middle of the river.\n9. Same\u2014boundary of a city\u2014construed. A charter of a city, in defining its limits, used this language: \u201cBeginning at the north-east corner of section 11, etc., and running thence west on the section line to Gordon\u2019s branch; thence down the meanderings of said branch to the margin of Cahokia creek; thence down on the left bank of said creek to the line between sections 3 and 4,\u201d etc.: Held, that the line was the middle of Gordon's creek, but as to Cahokia creek the rule was different, the line there being limited to the left bank of that stream.\n10. In such case, the boundary does not run where the water and land meet at low water, low-water mark not being the bank of the stream. Low-water mark is the point to which the water recedes at its lowest stage, while the banks are the elevations of land which confine the waters in their natural channel when they rise to the highest and do not overflow the banks.\n11. Error wild not always reverse\u2014admission of oral evidence of matters proved by the record. On an application by commissioners of highways for a mandamus against the county board, to compel the latter to furnish aid in the construction of bridges, the admission of oral evidence of the action of the commissioners, if error, can work no harm, when the same matters are also proved by the record of their proceedings.\nThis is an original application to this court, by the commissioners of highways of the township of Edwardsville, in Madison county, for a writ of mandamus, against the board of supervisors of that county. It is alleged in the petition that the said commissioners of highways did, on the 31st day of March, A. D. 1886, present to the board of supervisors of said county, then in session, a petition, estimate and affidavit, as follows:\n\u201cThe undersigned, commissioners of highways of the town of Edwardsville, in said county, would' respectfully represent that a bridge needs to be built over, the Cahokia creek, in said town, where the same is crossed by the highway leading from the city of Edwardsville, in said town, to the city of Alton, in said county; and also that a bridge needs to be built over said Cahokia creek, in said town, where the same is crossed, at the \u201cLucy Wheeler farm,\u2019 by the highway leading from said city of Edwardsville, in said town, by way of the \u2018old fair ground,\u2019 to Venice, in said county, in which said work the said town of Edwardsville is wholly responsible; that the cost of each of said bridges will be $1750, and the total cost of building both of said bridges will be $3500, which sum of $3500 will be more than twenty cents on the one hundred dollars on the latest assessment roll of said town, and that the levy of the road and bridge tax for the present year in said town is the full amount of sixty cents on each one hundred dollars allowed by law for the commissioners to raise, the major part of which is needed for the ordinary repair of roads and bridges; that said town has provided and appropriated for the building of said bridges the sum of $1750, being one-half the total estimated cost thereof, wherefore said commissioners of highways of said town hereby petition you for aid, and for an appropriation from the county treasury of a sum sufficient to meet one-half the expense of said bridges.\n\u201cDated at Edwardsville, Illinois, this 30th day of March, A. D. 1886.\nWilliam Smola,\nJohn F. Kienlen,\nC. M. Schwarz,\nCommissioners,of Highways.\"\n\u201cState of Illinois, Madison County, Town of Edwardsville. Board of Comrs. of Highways.\n\u201cWe, the undersigned, commissioners of highways of the town of Edwardsville, hereby state that we have made a careful estimate of the probable cost of the erection of two bridges across Cahokia creek, in said town, one where the same is crossed by the highway leading from the city of Edwardsville, in said town, to the city of Alton, in said county, and one where the same is crossed, at the \u2018Lucy Wheeler farm,\u2019 by the highway leading from the said city of Edwardsville, in said town, by way of the \u2018old fairground,\u2019 to Venice, in said county, and we do estimate that the probable cost of each of said bridges will be $1750, and that the total cost of said bridges will be $3500.\n\u201cWitness our hands this 30th day of March, A. D. 1886.\nWilliam Smola,\nJohn F. Kienlen,\nC. M. Schwarz,\nCommissioners of Highways.\u201d\n\u201cState of Illinois, Madison County, Town of Edwardsville.\n\u201cWilliam Smola, John F. Kienlen and C. M. Schwarz, commissioners of highways of the town of Edwardsville, being each duly sworn, on oath say that the construction of the bridges mentioned in the estimate to which this affidavit is attached, across Cahokia creek, in said town, is necessary, and that the same will not be made more expensive than is needed for the purpose desired.\nWilliam Smola,\nJohn F. Kienlen,\nC. M. Schwarz,\nCommissioners of Highways.\u201d\nSubscribed and sworn to.\nThe petitioners further represent, that all the matters and things in the said petition, estimate and affidavit set forth, were and are true, as therein stated, and the same were, upon presentation of said petition, estimate and affidavit to said board of supervisors aforesaid, made to appear to said board of supervisors, and that said petition, estimate and affidavit were presented to said board, as aforesaid, in good faith, and for the objects and purposes therein set forth, and that upon presentation thereof, as aforesaid, the same were, by said board, referred to its committee on roads and bridges, and afterwards, on the 14th day of September, A. D. 1886, being one of the days when said board was in session, at its regular annual meeting, said board denied the prayer of said petition, and refused, and still does refuse, to make said appropriation, although it was its plain duty to do so under the provision of the statute of this State. Wherefore the petitioners pray this court to order a writ of mandamus to issue from this court, directed to the said board of supervisors of Madison county, Illinois, commanding it forthwith to appropriate the said sum of $1750 out of the treasury of said county, to be expended in paying for one-half the cost of constructing two bridges in the town of Edwardsville, in said county, as prayed for in said petition of said commissioners of highways, and that said board of supervisors may be summoned, in accordance with the rules and practice of this court, to answer this petition, and upon a hearing thereof, this court will make such order herein as under the law may be justified, etc. The petition is subscribed by the commissioners, and sworn to.\nRespondents filed ten pleas, but demurrers were sustained to the first, second, seventh, eighth and ninth pleas. The third, fourth, fifth, sixth and tenth pleas are as follows:\n\u201cThird plea\u2014And for a further plea in this behalf, these respondents say that the said petitioners ought not to have a writ of mandamus against these respondents in this behalf, because they say, for said year in the said petition named, the levy of the road and bridge tax in said town of Edwardsville was not for the full amount of sixty cents on each one hundred dollars on the latest assessment roll of said township, but was less than said amount; and of this they put themselves upon the country.\n\u201cFourth plea\u2014And these respondents, for a further plea in this behalf, come and defend, etc., and say the petitioners ought not to have a writ of mandamus against them, because they say, when said petition of said commissioners of highways was presented to said board of supervisors, the matters and allegations in said petition contained were investigated by the said board of supervisors, and it did not appear to said board, or these respondents, that at the time said petition' was so presented, nor at any subsequent time, a major part of the full amount of the road and bridge tax of Edwardsville township, of sixty cents on the one hundred dollars of the latest assessment roll for the year, in said petition mentioned and claimed to be levied, was needed for the ordinary repair of roads and bridges in said town of Edwardsville, but on the contrary, these respondents say that the major part of said tax of said sixty cents on the said one hundred dollars was not needed for the ordinary'repair of roads and bridges in said township at the time said petition was presented to said board, nor at any time subsequent thereto-; and of this these respondents put themselves upon the country.\n\"Fifth plea\u2014And these respondents, for a further plea in this behalf, come and defend, etc., and say the petitioners ought not to have a writ of mandamus against them, because these respondents say that the major part of the full amount of the road and bridge tax for said Edwardsville township, for the year in said petition mentioned, alleged to be levied by said highway commissioners, of sixty cents on each one hundred dollars allowed by law to be raised by said highway commissioners for said tax, was not needed for the ordinary repair of roads and bridges'in said township when said petition for said aid was presented to said board of supervisors, nor at any other time; and this these respondents pray may be inquired into by the country.\n\u201cSixth plea\u2014And these respondents, for a further plea in this behalf, come and defend, etc., and say the petitioners ought not to have a writ of mandamus against them, because they say the cost of the bridges mentioned in said petition, and to be built, for which aid was asked, would together be less than twenty cents on the one hundred dollars of the latest assessment roll in said township; and of this they put themselves upon the country.\n\u201cTenth plea\u2014And for a further plea in this behalf, leave, etc., according, etc., the respondents say that the petitioners ought not to have their writ of mandamus against these respondents in this behalf, because they say that the east end and part,\u2014to-wit, the east piers, abutments, and all the approaches thereto,\u2014of said proposed bridge in said petition of the petitioners mentioned as crossing said Cahokia creek on the public highway leading from the city of Edwardsville to the city of Alton, in said county, is within the corporate limits of the city of Edwardsville, in the county of Madison, and State of Illinois, and that the cost of constructing the other proposed bridge near the \u2018Lucy Wheeler farm \u2019 will be less than twenty cents on the one hundred dollars on the latest assessment roll of said town of Edwardsville at the time said county board was so petitioned, and that the said town of Edwards-ville, before and at the time of presenting said petition for aid to said county board, had raised a sum of money sufficient to pay for said last named bridge, exclusive of the amount needed for the ordinary repair of roads and bridges; and this they are ready to verify, wherefore these respondents pray if petitioners ought to have their aforesaid writ of mandamus,\u201d etc.\nRelators file their replication to respondents\u2019 tenth plea, as follows: \u201cAnd the relators, as to the plea of the respondents by them tenthly above pleaded, by leave of court say, that they, (the relators,) by reason of anything in that plea alleged, ought not to be barred from having their aforesaid writ of mandamus, because they say that the bridge mentioned in said plea, proposed to be built across Cahokia creek, on the public highway leading from the city of Edwardsville to the city of Alton, is intended to take the place of an old wooden bridge now across said creek on said highway; that said old bridge rests upon two stone abutments, and no more, one of which abutments is on the west bank of said creek, and the other of said abutments is on the east bank of said creek; that said proposed bridge is to be an iron bridge, and is intended to be placed upon said two abutments, and upon no other abutments or piers, and that the estimated cost of $1750, mentioned in the petition herein, for building said proposed bridge, includes no expense or work on the said abutment on the east bank of said creek, or any approach thereto; and this the relators are ready to verify, wherefore they pray judgment and their writ of mandamus,\u201d etc.\nQuestions of fact were certified to the Macoupin circuit court, to be tried by a jury. The questions, and the findings of the jury returned in answer thereto, were as follows:\n\u201cWe, the jury impaneled and sworn to try the issues in the above entitled cause, make the following answers to the following questions, being the seven questions submitted by relators:\n\u201cFirst\u2014Was the levy of the road and bridge tax in the town of Edwardsville, in the year 1885, for the full amount of sixty cents on each one hundred dollars on the latest assessment roll of said town of Edwardsville ? Answer, yes.\n\u201cSecond\u2014Was the major part of said road and bridge tax, of sixty cents on each one hundred dollars on the latest assessment roll of said town of Edwardsville, needed for the ordinary repair of roads and bridges in said town, during the year for which said tax was levied ? Answer, yes.\n\u201c Third\u2014Will the cost of the two bridges mentioned in redators\u2019 petition for mandamus, be together more than twenty cents on the one hundred dollars of the assessment roll in the town of Edwardsville for the year 1885 ? Answer, no.\n\u201cFourth\u2014How much, if any, of the east end of the bridge mentioned in relators\u2019 petition, herein proposed to be built across Cahokia creek, on the public highway leading from the city of Edwardsville to the city of Alton, is in the corporate limits of said city of Edwardsville ? Answer, none.\n\u201cFifth\u2014How much, if any, of the east abutment of the present bridge across Cahokia creek, on the public highway leading from the city of Edwardsville to the city of Alton, is in the corporate limits of the city of Edwardsville ? Answer, none.\n\u201cSixth\u2014Is the bridge mentioned in relators\u2019 petition, and proposed to be built across Cahokia creek, on the public highway leading from the city of Edwardsville to the city of Alton, intended to take the place of an old wooden bridge now across said creek, on said highway, and does said old bridge rest upon two stone abutments, and no more, and is one of said abutments on the west bank of said creek and the other on the east bank of said creek, and is said proposed bridge to be an iron bridge, and is it intended to be placed upon said two abutments, and upon no other abutments or piers ? Answer, yes.\n\u201cSeventh\u2014Does the estimated cost of $1750 for building said bridge proposed to be built across Cahokia creek, on the highway leading from the city of Edwardsville to the city of Alton, include any expense or work on the east abutment of the old wooden bridge now across said creek, on said highway, or an approach to said abutment, or approach to the east end of said proposed bridge? Answer, none.\u201d\nAnswers to two interrogatories submitted by the respondents:\n\u201cFirst\u2014How much, if any, of the east end of the bridge mentioned in relators\u2019 petition, proposed to be built across Cahokia creek, on the public highway leading from the city of Alton to the city of Edwardsville, is in the corporate limits of said city of Edwardsville ? Answer, none.\n\u201cSecond\u2014If the jury answer that part of said east end is within the corporate limits of the city of Edwardsville, will it \"be necessary to expend any money on that part of said bridge, or the east pier or abutment or approach to said bridge, which they find is within the corporate limits of the city of Edwards-ville, for the proper building of the same ? Answer, we find that no part of said bridge is within the limits of the city of Edwardsville.\u201d\nThe court, at the instance of the relators, gave the following instruction to the jury:\n\u201cThe court instructs the jury, that the east margin of Cahokia creek is the boundary line of the city of Edwardsville, where the bridge mentioned in relators\u2019 petition is proposed to be built across said creek, on the highway leading from the city of Edwardsville to the city of Alton.\u201d\nRespondents asked the court to instruct the jury as follows, but the court refused to do so:\n\u201c1. The court instructs the jury, as a matter of law, that the corporate limits of the city of Edwardsville, as bounded by the Cahokia creek, extend to the middle of the stream of said creek.\n\u201c2. The court instructs the jury, as a matter of law, that the corporate limits of the city of Edwardsville, as bounded by Cahokia creek, extend to low water mark of said creek.\u201d After the jury had returned their answers to the interrogatories aforesaid, but before they were discharged by the court, relators requested the court to instruct them as follows:\n\u201cIf the jury find, from the evidence, that the cost of building the two bridges mentioned in relators\u2019 petition is undisputed in the evidence, and amounts to $3500, and that the total of the assessment roll of the town of Edwardsville, in the year 1885, is $1,013,423, then twenty cents on the one hundred dollars of said assessment roll is less than the cost of said two bridges, and the jury ought to answer the third question submitted to them, in the affirmative.\u201d\nThe court, holding that the instruction was asked too late, declined to give it.\nMessrs. Wise & Davis, and Messrs. Burroughs & Warnock, for the relators:\nThis court ought to award the writ, because from the pleadings, evidence and verdict it clearly appears that relators have brought themselves within the rulings of this court. People v. Iroquois County, 100 Ill. 640; Town of New Boston v. Mercer County, 110 id. 197; Will County v. People, id. 511; Logan County v. People, 116 id. 466; Stark County v. People, 118 id. 459.\nThe language used in the charter defining the city boundaries, clearly excludes Cahokia creek, and confines the same to the bank. Rockwell v. Baldwin, 53 Ill. 19; Hatch v. Dwight, 17 Mass. 298; Dunlap v. Stetson, 4 Mason, 349; Babcock v. Utter, 1 Abb. 27; Watson v. Peters, 26 Mich. 516; Daniels v. Cheshire, 20 N. H. 85; 3 Washburn on Real Prop. 411, note.\nMessrs. Dale & Bradshaw, and Mr. George F. McNulty, for the respondents:\nThe general doctrine that grants of lands bounded upon rivers or their margins above tide-water, carry the exclusive right and title of the grantee to the center thread of the current, unless the terms clearly denote the intention to stop at the margin of the river, has been too long established and too firmly adhered to by this court to be now questioned. Trustees of Schools v. Schroll, 120 Ill. 509; Helmer v. Castle, 109 id. 672; Piper v. Connelly, 108 id. 651, and authorities cited.\nThe Illinois decisions are in harmony with the decisions of other courts and text-writers on this question. State v. Canterbury, 8 Fost. 195, and New Hampshire cases there cited; Luce v. Cawley, 24 Wend. 451; 2 Smith\u2019s Lead. Cases, (8th ed.) part 1, p. 175; Johnson v. Anderson, 18 Maine, 76; Ex parte Jennings, 6 Cow. 518; Angell on Water-courses, sec. 23; Gould on Waters, sec. 197, p. 348, note 5; 3 Kent\u2019s Com. 428; Hayes v. Bowman, 1 Rudolph, 428; 3 Washburn on Real Prop. chap. 5, sec. 4.\nThough land, nominally and in terms, is bounded on the margin of a river, it extends, by construction of law, to the center or thread of the stream.\nThe word \u201cbank\u201d may be used as synonymous with the river; and it is plain that the naked circumstance of bounding a grant on, to, or by a bank, can not exclude the stream any more than bounding on the margin of the stream. Angell on Watercourses, secs. 23, 24.\nThe apparent exceptions, in the cases cited by relators, to this general rule, are governed by particular facts and surrounding circumstances that do not exist in this case. And even where the particular facts and surrounding circumstances show that the grant is to the margin of the water\u2019s edge, and not to the center of the stream, then the grant stops, not at the extreme high water, but goes to the low-water mark. 13 N. Y. 296; 4 Hill, 369; 20 Wend. 150.\nThe grant or charter defining the limits of a city is construed the' same as grants by deed, when the boundary is to be ascertained, and therefore is construed against the grantor. State v. Canterbury, 8 Fost. 196.\nThe commissioners of highways can not prove these proceedings by parol evidence. 1 Dillon on Mun. Corp. secs. 229, 247, 237, 238; Mayhew v. District Gay Head, 13 Allen, 129; McHaney v. Marion County, 77 Ill. 488; Spangler v. Jacoby, 14 id. 297; Steckart v. East Saginaw, 22 Mich. 104; Stevenson v. Bay City, 26 id. 44; Morrison v. Lawrence, 98 Mass. 219; Hunneman v. Fire District, 37 Vt. 40; Louisville v. McKegney, 7 Bush, 652; The Board v. Chitwood, 8 Ind. 504; Jordan v. School Directors, 38 Maine, 169." }, "file_name": "0009-01", "first_page_order": 9, "last_page_order": 27 }