Crismon v. Deck
| Decision Date | 27 January 1892 |
| Citation | 51 N.W. 55,84 Iowa 344 |
| Parties | CRISMON v. DECK ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Mahaska county; D. RYAN, Judge.
Action in equity to restrain defendants from interfering with a certain hedge and certain trees and from cutting a ditch in front of the premises of plaintiff, and for general equitable relief. From a decree in favor of plaintiff, the defendants appeal.Haskell & Green, for appellants.
Bolton & McCoy, for appellee.
Plaintiff is now, and has been since about the year 1869, the owner of the S. W. 1/4 of the S. E. 1/4, and the S. E. 1/4 of the S. W. 1/4, of section 19, in township 76 N., of range 16 W., of the fifth principal meridian. The defendant Edwards is the owner of the N. W. 1/4 of the S. E 1/4 of the same section. Between the tract of plaintiff first described and that of Edwards there is a traveled road, which is claimed to be a duly-established highway, 33 feet in width. The defendant Deck is supervisor of the road-district in which the alleged highway is situated. Steps to establish the highway were taken in the year 1869, and in December of that year the auditor of Mahaska county ordered that it be established, on condition that the petitioner pay the costs within 90 days. In the month of January next following the action of the auditor was approved by the board of supervisors, and the road ordered established in conformity with his action. About that time, plaintiff built a house upon the tract of land first described, and subsequently made other improvements,--planted an orchard, set out an Osage-orange hedge, built fences, and dug a well. He has a stable or barn near his house, and has occupied the place as a home for many years. His house and other improvements are near the road described, and are on a ridge which includes the highest ground on the north line of the tract upon which they are made, and in the road in front of it. At that place in the road are several shade trees. The defendants contend that the portion of the road which includes the trees, and which is bordered by the hedge, requires grading; that a shallow ditch should be made on the side next to plaintiff's land, and that the trees and hedge are obstructions to the proper working and use of the road, which should be removed. At the instance of Edwards, Deck served on plaintiff a notice to remove all obstructions in the road, and proposed to carry into effect the plan of work suggested. To restrain interference with the hedge and trees, and the digging of the ditch, this action was brought. General equitable relief was also demanded. A temporary injunction was granted, as prayed. The decree rendered on final hearing made the temporary injunction perpetual, and enjoined defendants, their successors, grantees, and assigns, from interfering with the hedge, fences, and shade trees.
1. In May, 1888, the court appointed a referee to try the cause. On the 27th day of September, 1888, the referee filed a report, which contained his findings of fact and conclusions of law, and a recommendation, in effect, that plaintiff be granted the relief demanded.
The record shows that on the 28th day of July, 1888, plaintiff filed in the office of the clerk of the district court a motion for leave to amend his petition, and to file a reply, and on the same day an amendment to the petition and a reply were filed. On the 10th day of August, 1888, the defendants filed in the clerk's office a motion to strike from the files the amendment and reply. The motion was supported by affidavits made by the attorney who had managed the case for the defendant, and were resisted by a counter-affidavit made by an attorney for plaintiff. It is admitted that the amendment and reply were filed after the trial before the referee had been concluded, and before he made his report. It was contended on the part of plaintiff that the papers named were filed, on leave granted by the referee, during the argument of the case to him, and that when the papers were presented to him he directed that they be filed with the clerk. A statement, signed by the referee as an amendment to his report, and filed on the 14th day of July, 1889, supports the claims of the plaintiff. These claims were denied in the affidavits made by the attorney for defendants. The motion to strike was overruled by the court. The amendment and reply were designed to conform the pleadings to the proof. Defendant knew that they were on file more than six weeks before the referee filed his report, and in ample time to have applied for a further hearing as to the issue tendered by the pleadings, had he desired to do so. It may be conceded that the filing was irregular, and that it would have been better practice had the papers been filed before the close of the trial by the referee; but it does not appear that defendants could have suffered prejudice by the delay. Amendments to pleadings are frequently allowed after the...
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