Clayton County v. Herwig

100 Iowa 631 | Iowa | 1897

Kinne, C. J.

Appellants’ contention is that the allegations sought to be stricken out, when taken in connection with other parts of the petition, show facts constituting a nuisance, for which a remedy is afforded by sections 4092 and 409B of the Code, and that the action is improperly joined with an action in equity to reform the deed. In other words, they claim that the remedy of an injunction to restrain the obstruction of a. highway cannot be had in an equitable action to correct the conveyance, because the acts sought to be enjoined may constitute a nuisance within the provisions of the criminal law. This court has repeatedly decided that the remedy by injunction exists, even though one may have an action at law to enjoin or abate a nuisance. Bushnell v. Robeson, 62 Iowa, 546 (17 N. W. Rep. 888); Moore v. Railway Co., 75 Iowa, 266 (39 N. W. Rep. 390); Gribben v. Hansen, 69 Iowa, 256 (28 N. W. Rep. 584); Ewell v. Greenwood, 26 Iowa, 379; Holmes v. Calhoun County, 97 Iowa, 360 (66 N. W. Rep. 146), and cases cited; Shirely v. Railroad Co., 74 Iowa, 169 (37 N. W. Rep. 133). It was held in Bushnell’s Case, that this equitable remedy had been, by Code, section 2508, preserved, and that thereby the legal remedy might be made more effectual. No reason appears why the same rule will not apply to a case like that at bar. If it should be conceded that the defendants might be punished for the crime of obstructing the highway, it is no reason why, in such a suit as this, they may not be enjoined, if it is found that they had committed the acts complained of, and thereby prevented from a constant repetition of them. Furthermore, a court of equity having jurisdiction for the purpose of correcting the deed, the relief sought by injunction is incidental thereto; and it is the policy of such courts, when juridisction is once obtained, to retain it until the controversy is settled. As is said in Insurance Co. v. McCrea, 4 G., Greene, 230, “it is within the peculiar province of that court [equity] to correct mistakes, and relieve against errors of this kind; and, having got jurisdiction for that purpose, they have power to go on and complete the remedy, even though, by so doing they decide upon matters purely pertaining to courts of law.” McDowell v. Lloyd, 22 Iowa, 450; Stapleton v. King, 40 Iowa, 284. The cases cited by appellants are not applicable. The ruling of the court was correct, and in harmony with the holdings of this court.— Affirmed. .