Peterson v. Hopewell

• Decision Date: 23 September 1898
• Citation: 55 Neb. 670,76 N.W. 451
• Parties: PETERSON ET AL. v. HOPEWELL.
• Court: Nebraska Supreme Court

55 Neb. 670

76 N.W. 451

PETERSON ET AL.

v.HOPEWELL.

Supreme Court of Nebraska.

Sept. 23, 1898.

Syllabus by the Court.

1.If the question of the sufficiency of the petition in its statement of a cause of action is not raised until during the trial of the cause, the pleading will be liberally construed, and, if possible, sustained.

2.By an application of the foregoing rule, the petition in the present caseheld to state a cause of action.

3.In an action which involves an alleged trespass on real estate, wherein a defendant pleads as a justification or excuse of or for the acts which consisted of the removal of a fence, and making a grade and ditch, that they were done within a public road, such party must show by a preponderance of the evidence the facts so pleaded.Shaffer v. Stull, 48 N. W. 882, 32 Neb. 98.

4.Findings that a public road had not been established by the board of commissioners, and that a section line had not been ordered opened for travel; that a road had not been established by user; also, that there had not been such use of a highway, and for the necessary length of time, as to raise a presumption that an order by the county board which purported its establishment was with and after all necessary legal steps,--were all sustained by the evidence.

5.An injunction will be granted to restrain a threatened trespass upon real estate, where such act would result in the destruction of the premises, in the character of their use and enjoyment, or a deprivation thereof.

Error to district court, Burt county; Keysor, Judge.

Action by Melville R. Hopewell against Edward W. Peterson and Daniel Fuller.Judgment for plaintiff.Defendants bring error.Affirmed.Edward W. Peterson, for plaintiffs in error.

Melville R. Hopewell, in pro. per.

HARRISON, C. J.

The plaintiff instituted this action in the district court of Burt county, and prayed that defendants be restrained from threatened trespasses upon real property, and in the trial court was awarded a judgment for the relief asked.The defendants have prosecuted error proceedings to this court.

The original petition declared against one of the defendants as a road overseer, and set forth that past acts and threatened ones had been and were to be done by such party, as such officer, in the claimed performance of his duties in and about the opening of a public road, and its preparation and completion for travel.After the answers of the defendants had been filed, the plaintiff asked leave to amend the petition by eliminating all reference to the official position of the one defendant; also, all statements which indicated that acts done or threatened had been or were to be done by such defendant in his capacity as road overseer, or in the performance of the duties of his office.The plaintiff was allowed to so amend the petition, and defendants were given five days within which to plead to the amended petition.This they did by obtaining leave and refiling their answers.

After the inception of the introduction of evidence during the trial, the defendants objected to the reception of any evidence, on the ground of the insufficiency of the amended petition.This objection was overruled, which action of the trial court is the burden of one assignment of error to which our attentionis challenged in the present examination of the litigation.The question of the sufficiency of the petition, or that there is not stated therein a cause of action, should ordinarily be raised and determined prior to the trial of the cause; and, where not presented until that time, the petition will be liberally construed, and, if possible, sustained.Roberts v. Taylor, 19 Neb. 184, 27 N. W. 87;Marvin v....