92 P. 550 | Kan. | 1907
The opinion of the court was delivered by
This was a suit by Council Grove township and Four Mile township, in Morris. county, to restrain Martha J. Bowman and S. A. Bowman from obstructing a public highway on the line between these townships. A temporary injunction ’was allowed at the commencement of the suit, but on the trial a demurrer to the evidence was sustained, the temporary injunction dissolved,, and judgment for costs entered against the plaintiffs. The plaintiff townships allege error in these rulings.
The petition alleged the existence of the road, and that the defendants threatened and were about to obstruct it by erecting a barbed-wire fence along or near the center thereof. The evidence tended to prove the following facts: The road was laid out in 1879, and was immediately opened and has ever since been used as a public highway. Culverts have been built, and the road graded and substantially improved. Soon after it was established, and more than fifteen years before the suit was commenced, the road was fenced and im
The evidence further showed that the road was laid oút and worked on the township line, twenty feet on each side of that line. No notice of the proposed survey had been given to the townships. Whether the survey was being made under the statute, or was merely private or ex parte, the evidence does not disclose. •The evidence also shows that soon after the suit was commenced a fence-post was set twelve feet in the road on the east line of Mr. Bowman’s land, and his east boundary fence was connected with it, making a
It is manifest that a fence built along or near the center of such a road, worked and improved as .country roads usually are, would be a serious obstruction to travel. It is also manifest from the positive declarations of Mr. Bowman, above quoted, which the record shows were repeated to others, coupled with the presence of the materials, and preparations therefor, that the defendants intended to build such a fence and permanently to occupy nearly half of what is prima facie, at least, a public road. It is true that an accurate survey and proper proof might show that the true route is north pf where the road has been fenced and used, but when the plaintiffs rested there was no proof to that effect, and the evidence certainly was sufficient to make a prima facie case that the road as opened and used was on the township line. Thus Mr. Crippen, trustee of Council Grove township, testified: “The road is laid out and worked on the township line, twenty feet each side of the line.” The, evidence tended to show that the road had been worked for twenty years, and fenced on both sides for eighteen years.
The defendants argue that the threatened obstruction would only be a naked trespass, and that injunction is not the proper remedy, citing Gulf Railroad Co. v. Wheaton, 7 Kan. 232. The testimony. tended to prove more than a mere intention to commit a trespass. There are many torts in respect to which the legal remedy is inadequate. Among the wrongs which equity will prevent are the interference with, or disturbance of, easements, where the act complained of is continuous in its nature and would result in the destruction of the easement.
“In fact, every disturbance of an easement or servitude, existing or threatened, will be thus restrained, whenever from the essential nature of the injury, or from its continuous character, the legal remedy is inadequate.” (Pom. Eq. Jur. § 1351.)
In a case involving the right to use a party wall, where such right was denied by the party in possession, this court said:
“The plaintiff for the time being was in the peaceful occupancy of the building, claiming such occupancy to be rightful. If the defendants desired to challenge that right it was incumbent upon them to assume the burden of instituting some legal proceeding to that end. They could not by forcibly seizing the debatable ground deprive the plaintiff of the advantage his possession gave him and compel him to become the moving party in an action to determine the true boundary of his lot.” (Mathis v. Strunk, 73 Kan. 595, 597, 85 Pac. 590.)
An injunction to prevent the obstruction and permanent occupation of a public street may be granted at the suit of the proper officers. (Smith et al. v. McDowell, 148 Ill. 51, 35 N. E. 141, 22 L. R. A. 393.)
Upon a demurrer to the evidence all the evidence which tends to prove the allegations of the petition will be considered as true. (Farnsworth v. Clarke, 62 Kan. 264, 62 Pac. 655.) As the evidence tended to show the existence and also the threatened permanent obstruction of the road, the demurrer thereto should have been overruled.
The suit was first brought in the names of the trustees. On a demurrer to the petition an amendment was made substituting the townships as plaintiffs. No question is made in this court as to the sufficiency or capacity of the parties.
A question of practice in this court is presented.
The judgment is reversed and the cause remanded for further proceedings.