Morgan v. Koestner

• Decision Date: 01 June 1891
• Citation: 83 Iowa 134,49 N.W. 80
• Parties: MORGAN v. KOESTNER.
• Court: Iowa Supreme Court

83 Iowa 134

49 N.W. 80

MORGAN

v.KOESTNER.

Supreme Court of Iowa.

June 1, 1891.

Appeal from district court, Des Moines county; CHARLES H. PHELPS, Judge.

Action to abate a saloon nuisance. John Linder and Henry Hirt were made co-defendants with Koestner. Koestner was and is the owner of the land on which the saloon was maintained. He leased it to Lewis Bannir for five years, with authority to erect a building thereon for “confectionery purposes.” Upon a preliminary hearing in this suit, a temporary injunction was granted against Koestner, and thereafter he notified Bannir to quit the premises, and remove his building, and, upon his neglect or refusal, Koestner instituted a proceeding for the forcible entry and detention of real property against Bannir, who resisted, and a judgment was entered in his favor before the justice, and also on appeal to the district court, as we understand, on the ground that Bannir was not a party to the suit, and in no manner bound by its proceeding. These facts were pleaded by Koestner on the final hearing in this suit, and by the proofs it was found that John Linder was maintaining the nuisance; that Koestner is the owner in reversion of the real estate. The temporary injunction was dissolved as to Koestner, and the action dismissed as to him and Henry Hirt. A decree was entered against John Linder. From the judgment as to Koestner the plaintiff appealed.Newman & Blake, for appellant.

P. Henry Smyth, for appellee.

GRANGER, J.

It is for us to determine the legal effect of the facts pleaded and proved by defendant Koestner. These facts are, as we understand, that he leased the lot to Bannir for five years, with the right to Bannir to construct a building thereon for confectionery purposes; that the building was erected, and defendant Linder conducted a saloon therein; that Koestner did not know the purpose to which the building was put; that, after the granting of the temporary injunction, Koestner notified Bannir to quit the premises and remove the building, which was not done; that Koestner then prosecuted his suit for the forcible entry and detention of real property, under the law in such cases, to terminate his lease; and that in the trial of such suit, both original and on appeal, he was defeated. The fact thus far are without dispute. It is, however, questioned in argument that Koestner, in leasing the lot and in his efforts to prevent its use as a saloon, acted in good faith. We see nothing in the record to justify us in finding that, when the lot was leased to Bannir, Koestner intended or knew that it would be used for saloon purposes, or that he knew it was being so used before this suit was commenced. After obtaining the knowledge, he seemed powerless to prevent such use. He resorted to the courts for a judgment that would terminate his lease, and give him control of the lot, but the judgment was refused; and the query forces itself upon our minds, if he could not prevent such use, will the law, by...