#### Edward Lange et al. Appellants, vs. George Busse et al. Appellees.

Opinion filed October 24, 1916.

Highways—when a freehold is not involved on appeal in an action of trespass. On appeal in an action of trespass for destroying a gate claimed by the defendants to have been placed across a public highway there is no freehold involved if the action was begun before a justice of the peace, as a justice of the peace has no jurisdiction to determine a freehold.

Appeal from the Circuit Court of Cook county; the Hon. Harry C. Moran, Judge, presiding.

Walter J. Miller, and Henry J. Harz, for appellants.

Rathje, Lawlor & Connor, (Edwin D. Lawlor, of counsel,) for appellees.

Mr. Justice Duncan

delivered the opinion of the court:

Edward Lange and Charles Witthaeger, appellants, began this action before a justice of the peace of Cook county for damages for the destruction of a gate placed by them on their land across a road claimed by the appellees, George Busse and Charles Roeske, to be a public highway. Judgment was rendered against appellees, and on appeal taken to the circuit court of said county a trial was had, and the jury rendered a verdict for appellees and judgment was en*199tered on the verdict. An appeal from that judgment has been perfected to this court on the assumption that a freehold is involved.

A justice of the peace has no jurisdiction to determine a freehold. The question whether or not the road mentioned is a public highway is only incidentally involved in this litigation, as the determination of that question will simply settle, under the stipulations in the record, the main question whether or not appellees, by their act of destroying the gate, are liable to appellants in trespass. Therefore the appeal should have been taken to the Appellate Court. Highway Comrs. v. Bruner, 248 Ill. 545.

The cause is transferred to the Appellate Court for the First District.

, Cause transferred.