#### The Board *of*Trustees of the Illinois and Michigan Canal Pltffs in Error *v.*The People, *ex*relatione, John V. A. Hoes and others, Defts in Error.

ERROR TO LA SALLE.

An alternative mandamus becomes the foundation of all subsequent proceedings, and must show on its face a clear right to the relief demanded, by setting forth all the material facts, so that they may be admitted or traversed.

The usual mode of taking advantage of a defective alternative mandamus, is by motion to quash. This may be the only mode of reaching mere formal defects. Objections to substantial defects may be raised at any time.

This was a proceeding for a mandamus, commenced in the La Salle Circuit Court, by Hoes and others, to"enforce the construction of a bride over the Illinois and Michigan Canal. At the March term, 1849, T. L. Dickey, Judge, presiding, Hoes, on behalf of himself and others, filed an affidavit, stating that a public road, leading from the town of Ottawa, in said county of La Salle, leading across the canal, had been laid out and established *251by'the County Commissioners, in March, 1835, which road" was intersected by the canal, and had been used as a public highway since 1835, until it was obstructed by the opening of the canal in 1848. That a certain State road, authorised by an act of the Legislature of 1845, was laid out in that year, which was also obstructed by the canal at the same point. Also, that another road leading from Ottawa, which had been used and traveled since 1832, was also obstructed by the opening of the canal; all these roads were on section 10, T. 33 N., E. 3 east of 3d P. M. That an application had been made to the Canal Trustees, to remove the obstruction by the erection of a suitable bridge, which the trustees had neglected and refused to build. This affidavit was accompanied by exhibits, showing the laying out of said roads by the proper authorities. The Circuit Court thereupon directed that an alternative writ of mandamus should issue to the Canal Trustees, commanding them to construct a bridge, or show cause to the contrary, at the next term of the court.

A writ was issued in the form as set out in the opinion of the court, on the seventh of May, 1849, which was served on the trustees, by copy. At the special term of the Circuit Court, in July, following, it was ordered, that a peremptory writ of mandamus issue, requiring and commanding the trustees to erect the bridge.

The Canal Trustees sued out a writ of error, and brought the cause before this court, at Ottawa, but by consent of parties, the cause was continued to Springfield, for hearing and judgment.

The errors assigned, state that there was no proper case or facts shown in the pleadings, which authorized the issuing of the writ. That the peremptory mandamus improperly emanated, and that the alternative was improperly served and was substantially defective.

E. S. Blackwell, and I. 1ST. Arnold, for Pltffs in Error.

The Canal Trustees, are not bound to erect the bridge in controversy, because no such duty is imposed upon them by law.

At common law. Counties were bound to erect and repair bridges. And no person or corporation is compelled to build or repair them, unless by force of some statute, or in cases of tenure or prescription. 1 Bacon Abr., 533 & 534, Tit. Bridges; 1 Burns’ *252Justice, 250, citing 22 Hen. 8, c. 5; 3 Com. Dig., 34, Tit. Chimin, (B 1); Queen *v.*Inhab. of the Co. of Wells, 6 Mod. R. 307, case 400; Regina *v.*Justices of St. Peters, in York, 2 Ld. Raym. 1251; The King *v.*W. R. of York, 7 East Rep., 588; The King *v.*Inhab. of Bucks., 12 East, 192; see also 5 Bur. R., 2594, 13 East E. 220.

This rule recognized in this country. 17 Johns., 452; 7 Wend., 477; 2 Comstock, 169, 170; also 2 N. H., 513.

Same rule incorporated in our statutes. Territorial Laws, 1807, page 300, §15; Laws, 1819, page 301, §2; Eyman *v.*People, 1 Gilman, 7, 8, see also Pope’s stat., 1815, page 640, §15; Laws, 1835-6, page 207, §2; Rev. Stat. 1845, pages 482, 485, & 488, §15, 23, & 37. English Parliaments recognize Com. Law rule by requiring Canal and Railway Co’s to restore easements. 45 E. C. L. 161; 10 M. & W., 263, see also 13 East., 220; 16 East., 305; 6 M. & W., 699. Same provision in Union Canal Co., Pa. Union Canal *v.*Pinegrove, 6 W. & S. 560 cited, 1 Sup. U. S. Dig., 362, §24. Same provision in Erie Canal Bill. 20 Johns., 742, see also 3 Hill, 569; 25 Wend., 462. So in Massachusetts, 3 Mass., 263 ; 7 Metcalf, 70. And Hew Jersey. 1 Spencer, 324. And Connecticut. 4 Day, 208. Legislature of this State also, Laws, 1818, page 45, §4; page 119, §5 ; Private Acts, 1827, p. 27, §1; Private Acts, 1833, p. 81, §11; Wabash and Miss. Railroad Co., Laws, 1835-6, p. 42, §17; (Same session with Canal bill,) p. 145 ; Similar Charters in Laws of 1834, 1835, & 1836-7. Also in the only two Canal Acts ever passed. Beardstown and Sangamon Canal Co., Laws, 1835-6, p. 100, §10. Same session, Eock River Rapids Canal Co., Laws, 1845, p. 237, §4.

Where provision is omitted, the charge is upon the Counties. King *v.*Inhabitants of Berkshire, 2 East, 342; Walesbury *v.*Clark, 4 Day, 208; City of Lowell *v.*Proprietors of Locks and Canals, &c., 7 Metcalf, 1; answer case in 1 Gill., 222; Kyle v. Auburn & Rochester R. R. Co., 2 Barbour, Ch. Rep., 489. This principle recognized. Laws, 1845, p. 90, §21.

County of La Salle benefited by the Canal and ought to bear the charge. The right of way for the construction of the Canal was granted prior to the establishment of the roads obstructed, and the County is bound to erect the bridges. 3 U. S. Stat. at large, 659; 3 Story’s Laws, 1833 & 2062; 4 *ibid,*234, c. 51; 4 *ibid]*4 *ibid,*662, c. 87.

*253County Court no power to lay out a highway under such circumstances. Barbour *v.*Andover, 8 N. H. R., 398; Laws, 1835, p. 138, § 32.

This grant accepted by Illinois Legis. Laws, 1829, p. 17, §10. Presumption in favor of Location and Survey. Laws, 1829, p. 15, §5; 8 Humph., 110. Right of way reserved by State. Laws, 1831, p. 43, §11; Laws, 1837, p. 42, §10; Reserved by Act of Congress, 13 Pet., 513.

The survey, location, construction, and completion of Canal, worked an extinguishment or discontinuance of the Highways in controversy. Power of the Legislature adequate. 6 How. U. S. Rep., 507; 11 Verm., 198; 4<Pick., 463; 2 Peters., 245; 4 Humph., 315 ; 2 H. H. 24-5; 10 Eng. 0. L., 413.

Roads have been repeatedly discontinued in this State by Legislature and County Courts. Ample power in Canal Trustees to discontinue. Laws, 1829, p. 17, §10; Laws, 1831, p. 43, §11; Laws, 1835, p. 225, §21 & 22; Laws, 1836, p. 148, §21 & 22. Trustees have same power. Laws, 1842, p. 56, §10; Laws, 1845, p. 31, §1. These Laws to be liberally construed. 4 Blaclcf., 505; 17 Conn. 46-23; 23 Pick., 49; 9 Metcalf, 553.

The location, survey, and completion of Canal worked a discontinuance. 11 Verm., 198; 17 Conn., 463; 14 Pick., 279, 280; 12 Peters., 97. Hot sufficient facts shown in mandamus to justify the judgment awarding peremptory writ. 7 East., 345; 5 Eng. C. L. R., 266; 10 "Wend., 26; 25 Maine, 333; 51 Eng. C. L. R., 898. It does not show a legal Highway. User interrupted by State in surveying and constructing canal. Road of 1835, no width given. Laws, 1835, p. 131, §9 ; 5 Blackf., 462, 1-4 Ohio, 613; Laws, 184-5, p. 89, §21. Liability of Canal Trustees not shown. 3 Iredell, 411; 1 Hawkins, P. C., 705; 4 Iredell, 16; 1 Harrison, 222; 1 Green, 314; 5 Burr., 2700; 3 Chitty C. Law, 594-5. Does not show a fund provided by law for the erection. 1 Gilm., 570-1; 7 Mass., 187-8; 7 Wend,. 476-7; 1-4 Ohio Cond., 268; 6-7 Ohio Cond., 192. Precise place where bridge to be erected not designated. County of La Salle ought to have been relators. 25 Maine, 291; 16 Pick., 105-6; 11 HI., 202 ; 19 Wend., 56. Mandamus will not lie, right not legal. 12 John., 414; 19 AVend., 65; 5 Wend., 122; 9 S& M., 90. The rule is different where a way is obstructed by a *private Corporation.*Trenton Water Power Co., 1 Spencer, 659; *254Leopold v. C. & O. Canal Co., 1 Gill 222; King *v.*Inhabitants of Lindsey, 14 East, 317.

N. H. Purple & J. V. A. Hoes, for Defts in Error.

It is doubted whether a party in *contempt*is entitled to a writ of error. Mandamus is proper where the law has established no specific remedy, and where in justice and good government there ought to be one. Bacon’s Ab., 418 ; 1 Cowen, 423. The highway is a public easement, the legal right vesting in the people, and any one may enforce and obtain a mandamus in such a matter. People *ex rel.*Case *et al. v.*Collins. 19 Wend., 64. In the case at bar, mandamus is the proper and appropriate remedy. 19 Wend., 56. The Canal Trustees had no right in cutting their canal across this highway, utterly to destroy it; and are bound to unite, for the public accommodation, the highway thereby divided, by a reasonably convenient thoroughfare over or under their canal. Leopold *v.*Chesapeake & Ohio Canal Co. 1 Gill, 222. The case of Leopold *v.*Chesapeake & Ohio Canal Company, 1 Gill, 229, was decided upon the Charter granted by State of Maryland, in 1823. See Laws Maryland, 1823, p. 85. This law contains no provision requiring Company to build Bridges.

The road laws of this State in force at the time of authorizing the construction of this canal, and those passed since, point out the method of vacating roads, and prohibit the obstruction of those established by “ placing any obstruction therein,” or “digging any *ditch*across the same.” Laws, 1835, §2, 8. This is in reply to the reference on the other side. To the laws authorizing the Companies to take “lands, &c.” The *ditch*is as good as those laws.

The Legislature did not intend, in authorizing the construction and its numerous feeders, to repeal the Road Laws, or authorize the entire destruction of the numerous highways which must necessarily be crossed by them or they would have provided some remedy. Nor could they have intended to have imposed the heavy burthen of uniting the several highways thus divided, upon the people of the counties or districts in which they may chance to be. Th,e most the Legislature could have intended was to so far modify the Road Laws as to authorize the canal to intersect the roads; the public to be accommodated by a passage way over or under the canal to be provided by the canal authorities.

*255That the Canal Trustees understood the law as requiring the erection of bridges by them, is a matter of public notoriety deemed proper to be referred to in presenting the case to the court. They have constructed bridges at nearly every point where the canal or its feeders intersect a highway, and are now maintaining them at the cost of the canal fund. Will the court discharge them from either building others where they have refused or neglected to build them, and where highways have been regularly established, and where the public accommodation requires them.

The writ in this case is not substantially defective. The case referred to on the other side, (10 Wend., 25,) does not sustain the position that it is assumed to. The writ in this case contains all that is material. The *command*to do the particular thing required to be done, and the *reason why “ the canal at that point obstructing the public highway,"*no reference to affidavits on file to help it out as in the case referred to. But admitting the writ to be defective, as is alleged. The parties have *appeared,*if that is necessary, it does not appear to be, and the *peremptory*writ has been awarded, and it is therefore now too late to take exception to the writ. 10 Wend., 25.

The only question now for the court to determine is, whether there was sufficient appearing *upon the record,*(10 Wend., 33,) to authorize the court to award the peremptory writ.

Treat, C. J.

This was a proceeding by mandamus to compel the trustees of the Illinois and Michigan Canal, to erect a bridge over the canal in La Salle county. Upon a petition and accompanying papers, the Circuit Court directed an alternative mandamus to issue. The writ, after reciting the term of the Court and the names of the parties, proceeded to state, that the Court “did order that an alternative mandamus issue out of said Court, directed to and commanding the said trustees, that immediately upon the receipt of said writ, they cause a bridge of suitable dimensions to be built over the Illinois and Michigan Canal, at the centre east and west of section ten, township thirty-three north, of range three east of the third principal meridian, in said county, the said canal at that point obstructing a public highway; or that they show cause to the contrary, before our said Circuit Court. Mow, therefore, we, being willing that full and speedy justice be done in this behalf, as it is just, command you, *256the said Trustees, that immediately after the receipt of this writ, you cause the said bridge to be built, or that you show cause to the contrary,” &c. The writ was served on the Trustees, but they failed to make any return thereto, and the Court awarded a peremptory mandamus. The Trustees sued out a writ of error from this Court.

It is insisted, that the alternative mandamus is too defective to sustain the judgment. An alternative mandamus becomes the foundation of all the subsequent proceedings in the case. It answers the same purpose as the declaration in ordinary actions. It must show on its face a clear right to the relief demanded by the relator. He must distinctly set forth all the material facts on which he relies, so that the same may be admitted or traversed. The defendant is called upon to perform the particular act sought to be enforced, or, by a return, deny the facts alleged in the writ, or state other matters sufficient to defeat the relator’s application. He is not required to answer the petition on which the writ is ordered. This is the well established practice in the proceeding by mandamus. The King *v.*The Bishop of Oxford, 7 East, 345; The King *v.*The Margate Pier Company, 3 Barnewell & Alderson, 220; Clarke *v.*The Company of Proprietors, 6 Adolplus & Ellis, N. S., 898; The Commercial Bank *v.*The Canal Commissioners, 10 Wendell, 26; The State *v.*Jones, 1 Iredell, 129; Hoxie *v.*The County Commissioners, 25 Maine, 333; The People *v.*Ransom, 2 Comstock, 490.

In this case, the alternative mandamus is fatally defective. It does not set forth the facts on which the relators rely. It does not apprise the defendants of the grounds upon which the remedy is sought. They are not permitted to traverse a certain state of facts, or admit the same to be true, and set up new matter in avoidance. The writ simply commands them to perform a particular act, or furnish an excuse for not doing it. It is not sufficient to uphold the proceedings. The judgment has no basis on which to stand.

The usual mode of taking advantage of a defective alternative mandamus, is by motion to quash. And that may be the only mode of reaching mere formal defects. But objections to substantial defects may be raised at any stage of the proceedings. This is like the case of a writ of error brought to reverse a judgment entered on a declaration showing no cause of action; or *257of a conviction on an indictment that does not charge the commission of an offence. The proceedings fall for the want of a proper foundation to sustain them. The following cases are in point, if authorities are needed in support of so plain a proposition. In the case of The King *v.*Overseers of Mallett, 5 Modern, 421, the writ was held ill after return made. In The King *v.*The Margate Pier Company, *supra,*the defendants were allowed to take advantage of a material defect in the writ, after their return was made. In Clarke *v.*The Company of Proprietors, *supra,*it was held by the Court of Exchequer, that, on demurrer to a traverse of the return to an alternative mandamus, the defendant might impeach the validity of the writ. In the case of The Commercial Bank *v.*The Canal Commissioners, *supra,*a demurrer to the return was carried back and sustained to the writ.

It is not necessary to express an opinion on the question, whether the Trustees are bound to construct and maintain bridges across the canal.

The judgment must be reversed, with costs, against the relators.

*Judgment reversed,.*