20 Kan. 47 | Kan. | 1878
The opinion of the court was delivered by
Action of injunction, to restrain defendant, as a public officer, from tearing down fences for the purpose of opening a public highway through plaintiff’s land, where in fact no highway had ever been established. The petition alleges ownership by plaintiff, the non-existence of a highway, and the acts and threatened acts of the officer. The question arises on demurrer; and it is objected that the wrong is a mere trespass, that the trespasser is not alleged to be insolvent, and that a general allegation that the threatened damages are irreparable is insufficient, and that it must be shown in what respect they will be irreparable. We see no error in the ruling of the district court. A mere trespass will not be restrained; (Gulf Railroad Co. v. Wheaton, 7 Kas. 232;) but where the trespass, if permitted to continue, will ripen into an easement, there injunction will lie; Kirkendall v. Hunt, 4 Kas. 521. As is said in Willard’s Equity Juris., p. 381, “While for a mere naked trespass, when the remedy at law is full and adequate, equity will not interpose,
Here the act sought to be enjoined is not a mere naked trespass. It disturbs the plaintiff’s possession, and will, if permitted to continue, ripen into an easement. User will establish a highway, and the officer is attempting to create the user. The law will protect a land-owner in his possession against any unauthorized interference therewith. See as cases in point, among a multitude, McArthur v. Kelley, 5 Ohio, 139; Morehead v. L. M. Rld. Co., 17 Ohio, 340; Anderson v. Comm’rs Hamilton Co., 12 Ohio St. 642; Bohlman v. G. B. & C. Rld. Co., 30 Wis. 105; Deidrichs v. N. & C. Rld. Co., 33 Wis. 219; Weigel v. Walsh, 45 Mo. 560; Carpenter v. Grisham, 59 Mo. 247. The threatened loss of his land, is the irreparable injury, and it matters not how solvent he may be who seeks to take it or to transfer it to the public use, the courts will protect the possession of the owner.
The judgment will be affirmed.