Township of Hutchinson v. Filk

• Decision Date: 26 November 1890
• Citation: 44 Minn. 536
• Parties: TOWNSHIP OF HUTCHINSON <I>vs.</I> JOHN FILK.
• Court: Minnesota Supreme Court

44 Minn. 536

TOWNSHIP OF HUTCHINSON vs. JOHN FILK.

Supreme Court of Minnesota.

November 26, 1890.

Appeal by defendant from an order of the district court for McLeod county, Edson, J., presiding, overruling his demurrer to the complaint.

J. V. V. Lewis, for appellant.

Willis & Nelson, for respondent.

MITCHELL, J.

This was an action to enjoin the erection and maintenance of an obstruction to a public highway, and to recover damages for the expenses incurred by the town in attempts to abate the nuisance. The appeal is from an order overruling a demurrer to the complaint. The grounds urged by defendant in favor of his demurrer, and against the order appealed from, are, in substance, these First. That a town, in its corporate capacity, has nothing to do with highways; that all powers and duties in respect to public roads are by statute vested in and imposed upon the supervisors, eo nomine, and not as agents of the town. Second. That the exclusive remedy for an obstruction to a highway is by criminal prosecution under the statute. Third. But, if a civil action to abate the nuisance or enjoin its maintenance will lie at all, it can only be brought in the name of the state, upon information of the attorney general.

The first point has been decided by this court against the contention of defendant, in Woodruff v. Town of Glendale, 23 Minn. 537, followed in Same v. Same, 26 Minn. 78, (1 N. W. Rep. 581;) Peters v. Town of Fergus Falls, 35 Minn. 549, (29 N. W. Rep. 586;) Town of Blakely v. Devine, 36 Minn. 53, (29 N. W. Rep. 342.) The only common-law remedy for the abatement of a public nuisance was by indictment, but it is now well settled that a court of equity may, in a proper case, take jurisdiction of public nuisances in civil actions for their abatement, and to enjoin their maintenance. This jurisdiction is grounded upon the greater efficacy and promptitude of the remedies administered in such actions, enabling the court to restrain nuisances that are threatened or in progress, as well as to abate those already in existence, and effect their final suppression by injunction, which will often also prevent a multiplicity of suits. Angell & D. Highw. § 280, and notes.

The last point is that in any event such an action will only lie in the name of the state upon the information of the attorney general. The principles laid down, and the reasoning adopted, in the recent case of Village of Pine City v. Munch, 42 Minn. 342, (44 N. W. Rep. 197,) are, we...