McBurney v. Graves

• Court: United States State Supreme Court of Iowa
• Citation: 23 N.W. 682,66 Iowa 314
• Parties: MCBURNEY v. GRAVES
• Decision Date: 04 June 1885

23 N.W. 682

66 Iowa 314

MCBURNEY
v.
GRAVES

Supreme Court of Iowa, Des Moines

June 4, 1885

Appeal from Fremont Circuit Court.

PLAINTIFF brought this action to recover damages for an alleged trespass, committed by defendant in tearing down an removing a certain gate and fence which inclosed a tract of land belonging to plaintiff, and which was used by him as a pasture. Plaintiff also alleged in his petition that defendant had threatened to repeat said trespass in case said fence and gate should be restored, and he prayed for an injunction restraining defendant from interfering with said gate and fence. Defendant, in his answer, admitted that plaintiff was the owner of the premises described in the petition, and that he had removed the gate and fence as charged in the petition, but he alleged that they were situated in a certain highway, and constituted an obstruction thereof, and that he removed the same therefrom while discharging the duties of road supervisor of the road district in which said highway was situated. Plaintiff recovered a judgment for damages, and an order was entered perpetually enjoining defendant from interfering with the premises. Defendant appeals.

AFFIRMED.

W. P. Ferguson, for appellant.

Stockton & Keenan, for appellee.

OPINION

[66 Iowa 315] REED, J.

I.

The prayer of the petition was for judgment for $ 100, and for an injunction restraining defendant from interfering, in the future, with the gate and fence in question. Plaintiff filed a motion to to dismiss the appeal, on the ground that the amount in controversy between the parties, as shown by the pleadings, does not exceed $ 100, and that the trial judge has not certified that the cause involves the determination of a question of law on which it is desirable to have the opinion of this court. This motion, we think, should be overruled. In addition to plaintiff's claim for damages, the cause involves an interest in real property. Plaintiff sought to recover on the ground that defendant's act in removing the fence and gate was an unlawful interference with his property; while defendant sought to justify his act on the ground that it was done in the lawful performance of his duties as a road [23 N.W. 683] supervisor. He alleged that the fence and gate were erected across an established highway. This allegation was denied, and the issue presented was whether the public had acquired the right to use and occupy the ground in question as a highway....