Chadbourn v. Zilsdorf

• Decision Date: 21 July 1885
• Citation: 24 N.W. 308,34 Minn. 43
• Parties: CHADBOURN AND ANOTHER v ZILSDORF.
• Court: Minnesota Supreme Court

34 Minn. 43

24 N.W. 308

CHADBOURN AND ANOTHERvZILSDORF.

Supreme Court of Minnesota.

Filed July 21, 1885.

Appeal from a judgment of the district court, Olmsted county.

Chas. C. Willson, for respondents, Chas. H. Chadbourn and another.

Erwin, Ryan & Ives, for appellant, Chris. Zilsdorf.

BERRY, J.

Like Greenleaf v. Egan, 30 Minn. 316, S. C.15 N. W. REP. 254, this action is, upon the pleadings, one in which legal and equitable causes of action are united, and therefore one in which some of the issues were triable by a jury, and some by the court. As said in the case cited, so it may be said here, that if defendant desired a jury trial of the specific issues properly triable by a jury, he should have demanded, not (as he did) that all the issues in the case be so tried, but such specific issues only.

The question upon which this case turned was whether there was a public highway across plaintiff's land, as claimed by defendant. The trial court found that there was not. It appeared that defendant was a road overseer, and that in tearing down plaintiff's fences, cutting down his trees, and doing other injuries to his land, he was acting as such overseer under the directions of the town supervisors, by whom he was instructed to keep the alleged highway open, all upon the basis of the existence of a lawful public highway. In this state of facts, we think an injunction was very properly allowed for the purpose of preventing the defendant from doing what from his stand-point and in his belief it was his official duty to do, viz., to keep open the supposed highway, and to do, and continue to do, whatever might be necessary to that end. In such case the injunction is properly granted upon the ground that the wrongful acts enjoined may become the foundation of adverse rights; that they are in the nature of a private nuisance to the plaintiff, and may occasion a multiplicity of suits. High, Inj. § 702. Johnson v. City of Rochester, 13 Hun, 285; Poirier v. Fetter, 20 Kan. 47; and see Wilson v. City of Mineral Point, 39 Wis. 160; 3 Pom. Eq. Jur. § 1357.

Judgment affirmed.