Bolton v. McShane
| Decision Date | 22 October 1885 |
| Citation | 25 N.W. 135,67 Iowa 207 |
| Parties | BOLTON v. MCSHANE, ROAD SUPERVISOR. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Linn district court.
Action in chancery to restrain defendant from interfering with or removing a fence. A demurrer to the petition was sustained. Plaintiff appeals.George W. Wilson, for appellant, Abraham Bolton.
Davis & Brooks, for appellee, Jacob McShane.
1. The petition alleges substantially that plaintiff is the owner of a tract of land along the line of which is a public highway which has been used by the public since plaintiff acquired the land in 1865; that plaintiff, about 16 years before the commencement of this suit, erected a fence along the line of this highway, which has ever since been maintained by him, and that defendant, as a supervisor of highways, threatens to remove the fence, and has caused a written notice signed by him as supervisor to be served upon plaintiff, a copy of which is made an exhibit to the petition, requiring plaintiff to remove the fence, and informing him that if the requirement is not complied with in 11 days the defendant himself will remove it. It is also alleged that defendant, if not restrained by injunction, will remove the fence, which would open plaintiff's inclosure, and expose to waste his crops, shrubs, and trees, thus working to him an irreparable injury. A demurrer to the petition on the ground that the facts stated therein do not entitle plaintiff to the relief demanded was sustained.
2. It is a familiar doctrine that the commission of a mere trespass will not be restrained by injunction when the injury would not be irreparable, the trespasser is solvent, and adequate compensation for the injury in damages may be recovered by law. But if the injury be irreparable, chancery will interfere by injunction. See 2 Story, Eq. Jur. § 928, and notes. The petition alleges that the injury which will result from the threatened act of defendant will be irreparable. It therefore shows ground of relief in equity.
3. But there are other reasons against the correctness of the ruling of the district court. The petition and exhibit clearly show that defendant is threatening to remove the fence in his official capacity as supervisor of highways. There are numerous cases in this court wherein equity has interfered by injunction to restrain road supervisors and others from removing or interfering with fences, hedges, water-courses, and the like in the discharge of their official duty. Relief in these cases was not based upon the grounds of the irreparable character of the injury and the insolvency of the defendants. Without attempting to cite all of these cases, we refer to the following, which we now remember: Bills v. Belknap, 36 Iowa, 583;Grant v. Crow, 47 Iowa, 632;McCord v. High, 24 Iowa, 336;Quinton v. Burton, 16 N. W. Rep. 569.
We think...
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