Chief Justice Mercur
delivered the opinion of the court, January 7th 1884.
A turnpike road can be constructed and opened under authority of law only. When used by the public, it becomes a public highway. It was said in Nor. Cen. Railway Co. v. Commonwealth, 9 Norris 300, the main object and purpose of a turnpike is to provide a public highway of a superior quality. It is very clear that a turnpike is not a private road or way. It cannot be closed by the stockholders against public use. It is constructed by virtue of public authority, and for public use. It is for the use of every person who desires to pass over it, on payment of the toll established by law. Its use is common to all who comply with the law: Id.
The turnpike now in question was laid out and established in 1836 by a company incorporated on the 31st of March of that year. It was maintained, controlled and operated as such by the company until 1881, when the charter was declared forfeited by due process of law. The turnpike was used and traveled as a public highway from the time it was constructed until the charter of the company was forfeited, and so continued to be used until the plaintiff in error took possession of the portion thereof which gives rise to this contention.
The question is, did the forfeiture of the charter of the turnpike company wholly destroy the character of the road as a public highway ? The right of the company to take tolls was ended. Its liability to keep the road in repair was terminated, yet the road as a public highway remained. No judgment or decree had destroyed its character as such. It had been dedicated to public use. It had been accepted and used as a public highway for some forty-five years. The forfeiture of the charter of the turnpike company destroyed the rights of that corporation : yet the road still remained, in fact and in law, a public highway: Craig v. The People ex rel. 47 Ill. 495.
Conceding that the title of the owner of the soil in the fee was not destroyed by the use to which the surface was put by the turnpike company, and also that the forfeiture of its charter terminated all its rights as against the owner, yet these facts did not have the effect to vacate the road as a public highway. It was not then taken for private purposes, but remained open for public use.
It is a general rule of law that the title of the owner of land to the fee is not divested by the construction and maintenance of a public highway thereon. His right to the soil, and the right of the public to pass over the ground, both exist at the same time.
When tlie obligation of the turnpike company to maintain the road ceased, the duty was imposed on the municipality in which it was located, to take charge of the road, and put and keep it in repair in the same manner as if it were a county road : Act of 19th April 1844, § 8, Pur. .Dig. 1279, pi. 56.
. As long as this road continued to be used as a public highway, and had not been vacated by any legal proceedings, the raiiroad company could not treat it as abandoned. It could not lay its track thereon without incurring the obligation imposed on it by law for the taking and occupying of a public highway. We discover no error in the trial, and the learned judge was clearly right in entering judgment in favor of. the plaintiff below on the Question of law reserved.
Judgment affirmed.