79 Iowa 93 | Iowa | 1890
I. It is averred in the petition that the defendant W. D. Osborne “has unlawfully entered upon and travelled over the said . „ ^ , .. - premises, * * * and has thrown down, torn out and cut the fences surrounding the described premises belonging to your petitioner herein, although notified repeatedly to desist from so doing; that, in spite of the remonstrations of said plaintiff, the said defendant herein has continued to throw down, tear out and cut said fences, and travel over the said premises, belonging to said plaintiff, and has threatened to commit other and further trespasses on said real estate, and eject your petitioner from a portion thereof, to his annoyance and damage, and to the disturbance of his rights in and to said premises.” It is further averred in the petition that the defendant is insolvent, and that the injury which will result from the threatened acts of the defendant will be irreparable. Other persons were made parties defendant to the action by an amendment to the petition, but they were either members of defendant Osborne’s family or had no real interest in the controversy. The defense was made by W. D. Osborne alone.
It is claimed that the proof does not establish the fact that the defendant repeatedly opened the fences and traveled across the premises, and that it affirmatively appéars that he is not insolvent, and that there is no ground for equitable interference by injunction for what was merely an action at law for trespass. The right to an action in equity, restraining the removal of fences and opening up highways, the cutting down of shade trees, or any other threatened invasion, use or occupation of the land of another, has been too long established in this state to be now called in question. In City of
III. It is claimed by appellant that there is a highway over the plaintiff’s land by prescription. We have given this feature of the case very careful consideration, because we regard it as the only real question in the case. Our conclusion is that no presumptive right had been acquired when thisa suit was commenced. It would .serve no useful purpose to set out the evidence on this branch of the case. It is enough to say that there is no sufficient showing of adverse user of the strip' of land in question to authorize a finding that the public acquired a right to the same as a public highway. We discover no sufficient reason for disturbing the decree of the court below. Appírmed.