Ewell v. Greenwood

Wright, J. 1. Highway: statute of limitations: — In our opinion the demurrer was improperly sustained. That this was a public highway, by the use of it for that purpose for the time shown in the petition, saying nothing of the special dedication or relinquishment, under the doctrine of Onstott v. Murray (22 Iowa, 457), can hardly admit of doubt. As we are not disposed to depart from what is there ruled, this point in the present case is held against the appellee. 2. Nuisance: obstruction of highway: injunction. The other points raised by the demurrer may be briefly stated and as briefly decided. An indictment lies to a^ate a nuisance of this kind, and to punish the offender. Equity will also redress the grievance by way of injunction. Mr. Story [380] says, that injunctions in equity have been maintained against a public nuisance by stopping a highway. 2 Eq. Jur. § 923. And this because courts of equity are able to give a more complete and perfect remedy than is attainable at law; and the remedy obtains, of course, in cases of private nuisance. If the individual suffers an injury distinct from the public, as a consequence of a public nuisance, he is unquestionably entitled to an injunction and relief in equity. Id. 924, note 2; Edw. Inj. Ch., 11, and especially pp. 259, notes 1, 2; 260, note 1; 261, note 2; State v. Mayn, 5 Port. 279; City of Georgetown v. Canal Co., 12 Pet. 98. 3. _right of action. Our statute is, that whatever is injurious to health, or indecent or offensive to the senses, or an obstruction to ft'ee 1186 °f property, so as to essentially interfere with the comfortable enjoyment of life or property is a nuisance, and the subject of an action; and that such action may be brought by one whose property is injuriously affected, or whose personal enjoyment is lessened by such nuisance. Eev. §§ 3713, 3714. And if a proper case is made, it may be enjoined or abated. § 3715. "With these provisions for our guide there can remain no question. That the petition makes a proper case, we entertain no doubt. If its allegations are true, then certainly the defendant’s acts do obstruct plaintiff’s free use of his property, “ and to such an extent as essentially to interfere with its comfortable enjoyment.” If they are true, then his property is injuriously affected by the alleged nuisance. Suppose every morning he should find a fence across a public highway leading to his mill, placed there by defendant, with the malicious design of injuring plaintiff, would any one doubt his right to this remedy ? Certainly not, and yet that would scarcely be a more patent flagrant case than the one before us. [381] 4. injunction: breach of contract. [380] Not only so, but if the case stood alone upon the [381] alleged agreement between tbe parties under wbicb this way was opened, the plaintiff would, under . 1 . . , . , , section 3798 ot the Revision, be entitled to tbis remedy to prevent a continuance of tbe alleged breach of tbe contract on tbe defendant’s part. Tbe injunction may be granted before tbe case is finally determined.Before tbe order to abate is entered, of course tbe other party should be heard, and tbis is all that tbe cases cited by appellee ( Van Burgen v. Sower, 2 Johns. Ch. 273; Gardner v. The Trustees, id. 162) teach. They certainly contain no contrary doctrine. And that it may issue to stay an injury, if not to pull down and destroy, preliminarily, is well shown by our statute to wbicb we have above referred. Reversed and remanded with leave to answer over. Reversed.