Chadbourne v. Zilsdorf

Berry, J.

Like Greenleaf v. Egan, 30 Minn. 316 , tbis action is, upon the pleadings, one in which legal and equitable causes of action •are united, and therefore one in which some of the issues were triable by a jury, and some by the court. As said in the case cited, so it may be said here, that if defendant desired a jury trial of the specific issues properly triable by a jury, he should have demanded, not (as he did) that all the issues in the ease be so tried, but such specific issues only.

The question upon which this case turned was whether there was a public highway across plaintiffs’ land, as claimed by defendant. The trial court found that there was not. It appeared that defendant was a road-overseer, and that in tearing down plaintiffs’ fences, cutting down their trees, and doing other injuries to their land, he was acting as such overseer under the directions of the town supervisors by whom he was instructed to keep the alleged highway open, all upon the basis of the existence of a lawful public highway. In this state of facts, we think an injunction was very properly allowed for the purpose of preventing the defendant from doing what, from his stand-point and in his belief, it was his official duty to do, viz., to keep open the supposed highway, and to do, and continue to do, whatever might be necessary to that end. In such case the injunction is properly granted, upon the ground that the wrongful acts enjoined may become the foundation of adverse rights; that they are in the nature of a private nuisance to the plaintiffs, and may occasion a multiplicity of suits. High on Injunctions, § 702. Johnson v. City of Rochester, 13 Hun, 285 ; Poirier v. Fetter, 20 Kan. 47 ; and see Wilson v. City of Mineral Point, 39 Wis. 160 ; 3 Pom. Eq. Jur. § 1357.

Judgment affirmed.