Heaton v. Wireman

• Citation: 105 N.W. 634,74 Neb. 817
• Decision Date: 11 November 1905
• Docket Number: 13,954
• Parties: DAVID H. HEATON, APPELLEE, v. JOHN P. WIREMAN, APPELLANT
• Court: Supreme Court of Nebraska

105 N.W. 634

74 Neb. 817

DAVID H. HEATON, APPELLEE, v. JOHN P. WIREMAN, APPELLANT

No. 13,954

Supreme Court of Nebraska

November 11, 1905

APPEAL from the district court for Sheridan county: WILLIAM H WESTOVER, JUDGE. Affirmed.

AFFIRMED.

J. H Edmunds and Frank J. Kelley, for appellant.

W. W Wood, contra.

AMES, C. LETTON and OLDHAM, CC., concur.

OPINION

AMES, C.

Plaintiff and defendant are owners, respectively, of adjoining tracts of land, and there is a dispute about the division line. The plaintiff had been for many years in possession to the limits to which he claimed that his ownership extended, and had established and maintained for a long time his dwelling house, vegetable garden, etc., near the disputed boundary. The defendant took it upon himself to decide the matter in controversy, and to carry his judgment into execution invaded the plaintiff's possession, destroyed his growing vegetables, plowed and dug up the soil, and proceeded to erect a fence within a few feet of the plaintiff's dwelling, arming himself for the better accomplishment of his purpose with a loaded gun, and threatening the plaintiff and the members of his family with bodily injury. This action was begun to enjoin the continuation of this conduct, which amounted to a private nuisance, until the true boundary could be ascertained, and then to procure the injunction to be made perpetual. There was a trial upon ample proofs, and a judgment was rendered comformably thereto, and to the pleading and prayer of the petition, from which the defendant appealed.

There are two grounds alleged in the brief for a reversal. The first is that the plaintiff had an adequate remedy at law in an action, or in actions, for trespass; and the second is that the judgment is not sustained by the evidence. As to the first, the law is too well settled to require the citation of authority that one in the lawful and peaceable possession of real estate, especially if it be his dwelling, may enjoin repeated and riotous acts of invasion and trespass until the title and right of possession can be settled in some regular and orderly way. A contrary doctrine would be destructive of the peace and well-being of society. As to the second objection, it is not much insisted upon by counsel. The evidence is somewhat voluminous, and we have examined it sufficiently to be convinced that it upholds the judgment of the district court, affirmance of which w...