County of Cedar v. Thelen, 305 Neb. 351

Cedar County repeatedly found an electric fence placed in the county road ditch within its 66-foot right-of-way (about 16–17 feet from the roadway centerline). The fence was used seasonally to move cattle and was removed and re-erected several times.
The County removed the fence multiple times, notified owner John Thelen to stop, and incurred removal costs; Thelen refused to keep the fence off the right-of-way.
Thelen was criminally prosecuted and convicted three times for violating Neb. Rev. Stat. § 39-301; those convictions were affirmed in a companion appeal.
The County simultaneously sued for a permanent injunction prohibiting Thelen from erecting fences or other obstructions within 33 feet of the road centerline (including the ditches).
The district court, on stipulated evidence, found repeated and flagrant statutory violations and concluded criminal prosecutions were an inadequate remedy; it granted the permanent injunction.
Thelen appealed, arguing (1) the ditch/right-of-way is not a “public road” under § 39-301 and (2) criminal misdemeanor prosecutions provide an adequate remedy at law so injunctive relief was improper. The Nebraska Supreme Court affirmed.

Issue	Plaintiff's Argument (County)	Defendant's Argument (Thelen)	Held
Whether the ditch/right-of-way is part of the “public road” within § 39-301	§ 39-301 covers the entire county right-of-way, including ditches	Ditch/right-of-way is not a “public road” under § 39-301	Court: § 39-301 includes the county’s full right-of-way (including ditches); Thelen’s challenge rejected
Whether criminal misdemeanor prosecutions provide an adequate remedy at law so equity should not enjoin further conduct	Criminal fines/prosecutions are inadequate to prevent repeated violations; injunction protects public safety and rights	Repeated fines are criminal remedies and therefore adequate; injunction is improper because it would enforce criminal law via equity	Court: Criminal prosecutions were inadequate given repeated, flagrant violations; equity may issue injunctions to prevent future public harm; injunction affirmed

State v. Chicago & N. W. Ry. Co., 147 Neb. 970 (1947) (upheld injunction enforcing safety regulations despite penal statute)
City of Lincoln v. ABC Books, Inc., 238 Neb. 378 (1991) (injunction appropriate where repeated prosecutions and fines failed to stop unlawful conduct)
State ex rel. Meyer v. Weiner, 190 Neb. 30 (1973) (permanent injunction against continuous unlicensed activity despite criminal penalties)
State ex rel. Douglas v. Wiener, 220 Neb. 502 (1985) (injunction justified against continuing statutory violations affecting public interest)
State ex rel. City of Alma v. Furnas Cty. Farms, 266 Neb. 558 (2003) (equity may protect public rights/property via injunction even when penal statutes exist)
State v. Pacific Express Co., 80 Neb. 823 (1908) (state may seek injunction to protect public interests against corporate abuses despite penal remedies)
State ex rel. Sorensen v. Ak-Sar-Ben Exposition Co., 121 Neb. 248 (1931) (equity may issue injunctions for public nuisances when they afford more complete relief)
Hogelin v. City of Columbus, 274 Neb. 453 (2007) (discussion of adequacy of legal remedies vs. equitable relief)