Pohlman v. Evangelical Lutheran Trinity Church of Clatonia Precinct, Gage County

• Decision Date: 20 June 1900
• Docket Number: 9,255
• Parties: HENRY POHLMAN ET AL. v. EVANGELICAL LUTHERAN TRINITY CHURCH OF CLATONIA PRECINCT, GAGE COUNTY
• Court: Nebraska Supreme Court

83 N.W. 201

60 Neb. 364

HENRY POHLMAN ET AL. v. EVANGELICAL LUTHERAN TRINITY CHURCH OF CLATONIA PRECINCT, GAGE COUNTY

No. 9,255

Supreme Court of Nebraska

June 20, 1900

ERROR to the district court for Gage county. Tried below before LETTON, J. Affirmed.

AFFIRMED.

Hazlett & Jack, for plaintiffs in error.

Griggs Rinaker & Bibb, contra.

OPINION

NORVAL, C. J.

This suit was instituted by the Evangelical Lutheran Trinity Church of Clatonia precinct, Gage county, to enjoin Henry Pohlman and Henry Holsing from entering or trespassing upon certain real estate alleged to belong to plaintiff, and from destroying the fence around said premises. A temporary injunction was issued, which was made perpetual upon the final hearing of the cause. The defendants prosecute error.

Plaintiff acquired title to the tract by deed of general warranty from the prior owner. It thereafter erected a church building and parsonage on the premises at the cost of several hundred dollars, inclosed the same with a fence, and used and occupied the premises for religious purposes. The defendants assert that the grantor in the deed to plaintiff only intended to convey five acres of land, while a larger tract was actually described in the conveyance. They also claim title to the portion of the premises in excess of five acres by reason of adverse occupancy for more than ten years. The testimony, in many respects, was conflicting, in which case the rule is that a finding based thereon will not be disturbed on review.

It is argued that injunction will not lie, as plaintiff had a complete remedy at law to recover damages. It was shown that defendants tore down and destroyed the fence, and threatened to continue doing so as often as plaintiff should restore the same. This threatened continued trespass was sufficient to give a court of equity cognizance of the cause, though the defendants may not be insolvent. Shaffer v. Stull 32 Neb. 94, 48 N.W. 882.

The church claims under a deed from one Paul Bartos, a former owner of the property, in which conveyance the description was by metes and bounds as follows: "Beginning at the southeast corner of the southeast quarter of section thirty (30), town six (6) N. range five (5) east in Gage county thence north four hundred and twenty-five (425) feet thence west one thousand and fifty (1050) feet thence south four hundred and twenty-five (425) feet to the south line of said section, thence along said line one thousand and fifty (1050) feet to the place of beginning, containing five (5) acres more or less." Subsequently Bartos conveyed to Frederic A. Pohlman said southeast quarter of section 30, with the following reservation contained in that deed "Except five acres more or less of said quarter section, bounded and described as follows: Beginning at the southeast corner of said section (30) thirty, thence north four hundred and twenty-five (425) feet, thence west one thousand and fifty (1050) feet, thence south four hundred and twenty-five (425) feet, to the south line of said section, thence east along said line one thousand and fifty (1050) feet, to the place of beginning, which last described premises have been conveyed to John F. Hobelman, August Vonderfecht and William Schlake, trustees of the Evangelical Lutheran Church." Afterwards, the grantee in the last deed and his wife contracted to convey to Henry Lohmeyer the said southeast quarter of section 30 "except five acres deeded to trustees of the Evangelical Lutheran Church." This bond also stipulated that "It is hereby especially agreed that if more than five acres have been deeded to said Lutheran Church, then said Pohlman and wife will give a rebate to said Lohmeyer for each and every acre and part, above said five acres, at same rate as the consideration in this bond." Thereafter said Pohlman and wife executed a warranty deed to said Lohmeyer for said southeast quarter of section 30, "except ten acres more or less of said quarter section, bounded and described as follows: Beginning at the southeast corner of said section thirty (30), thence north four hundred and twenty-five (425) feet, thence west one thousand and fifty (1050) feet, thence south four hundred twenty-five (425) feet, to the south line of said section, thence east along said line one...