Twp. of Hutchinson v. Filk

• Decision Date: 26 November 1890
• Citation: 44 Minn. 536,47 N.W. 255
• Parties: TOWNSHIP OF HUTCHINSON v FILK.
• Court: Minnesota Supreme Court

44 Minn. 536

47 N.W. 255

TOWNSHIP OF HUTCHINSONvFILK.

Supreme Court of Minnesota.

Nov. 26, 1890.

(Syllabus by the Court.)

1. Under the statutes of this state, the care and maintenance of highways are vested in the towns in their corporate capacity, the supervisors being merely their officers and agents. Following Woodruff v. Town of Glendale, 23 Minn. 537.

2. A civil action to abate a public nuisance constituting an obstruction to a highway, and to enjoin its maintenance, may be maintained by a town in its own name.

Appeal from district court, McLeod county; EDSON, Judge.

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;Township 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...