#### The Commissioners of Highways of the Town of Lyons, Cook County, v. The People of the State of Illinois ex rel. Samuel Kilham et al.

Evidence—identifying a road from, the description in the order. In a proceeding for a mandamus to compel the opening of a certain highway, this court, at the hearing on appeal, being in doubt whether the road was described with sufficient certainty in the order laying it out, to make its location feasible, directed, among other things, the court below to “ call surveyors and receive proof on this point of location.” On the new trial witnesses were permitted to testify from the description in the alternative mandamus, and from a plat annexed thereto, instead of confining them to the description in the order laying out the road. Held, that the witnesses should have been permitted to speak only as to the description contained in the order. If that was void for uncertainty, no mandamus could issue.

Appeal from the Superior Court of Chicago; the Hon. Joseph E. Gary, Judge, presiding.

This was a proceeding for a mandamus, to compel the opening of a highway, alleged to have been established under the provisions of art. 24, township act, Session Laws 1861, p. 11, et seg. The case was before this court at the April Term, *4541865,* when it was remanded. In the opinion of this court, reversing the cause, the following direction was given: “ On the next trial, the Circuit Court will call surveyors and receive proof on this point of location, and if they are satisfied with the proof that the road can be located as laid out by the supervisors, they will order accordingly.”

The cause was tried at the January Term, 1866, of the court below, by jury, and a peremptory mandamus awarded against three persons, named in the judgment as successors of the respondents, and costs adjudged against the town of Lyons. From that judgment this appeal is brought, and a reversal asked. The further facts, so far as they are material to the points decided, appear in the opinion of the court.

Messrs. Haines & Story, for the appellant.

Messrs. Garrison & Blanchard, for the appellee.

*

Reported in 38 Ill. 347.

Per Curiam :

When this case was before the court at the April Term, 1865, we were in great doubt whether the road was described in the order laying it out, with sufficient accuracy and certainty to make its location possible, and as the case had to be sent back upon another point, we directed the testimony of competent surveyors upon this question. In taking this testimony, the court allowed the witnesses, against the objections of the appellants, to testify from the description in the alternative mandamus, and from a plat annexed thereto, instead of confining them to the description contained in the order laying out the road. The witnesses should have been permitted to speak only as to the description contained in the order. If that was void for uncertainty, no mandamus can issue.

Judgment reversed.