Creanor v. Nelson

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

This is an appeal from an order dissolving an injunction. The complaint alleges that the defendant had entered upon the plaintiff’s land, torn down the fences, and threatened to continue these acts. The County Judge granted an injunction upon the com[466]plaint alone. The defendant filed an answer justifying the alleged trespass, on the ground that the land in question was a public highway ; that he was Road Overseer, and that he entered'on the land as such Road Overseer, to open the highway—but did not aver that the money had been paid to the plaintiff as a compensation for the land taken. Upon this aiwer the County Judge who granted the injunction dissolved the same on motion of the defendant. It appears that the County Judge dissolved the injunction upon two grounds: 1st. That the complaint was insufficient to authorize the injunction; 2d. The defendant’s answer showed that the injunction ought not to be continued.

The answer alleges that the road in question was duly declared a public highway by the proper authorities, all the steps required by law having been taken, and that he was duly ordered by the Board of Supervisors to open the road as surveyed and marked out, and cause the same to be kept open to the public; that the damages to plaintiff’s land were duly assessed at five hundred dollars ; that the Board of Supervisors had ordered that said sum be paid to the plaintiff from the General Fund of the county, and ordered the County Auditor to draw his warrant therefor on the County Treasurer, which was done; and before defendant entered on the land, said warrant had been duly tendered to the plaintiff, which he refused to accept; and the warrant is still ready to be delivered to the plaintiff on demand.

The granting of injunctions is an equitable proceeding, and the party seeking this peculiar equitable relief should show that he has a right under all the circumstances to this extraordinary writ. In a case like the present it must appear, that he will suffer “ great or irreparable injury ” if the defendant is suffered to continue the acts complained of; it must also appear, that the plaintiff is not in default in the matter.

Under the circumstances of this case, it is clear that the plaintiff will not suffer any injury whatever by the acts of the defendant. The land has been duly condemned to public use for the purposes of a public highway. The amount the plaintiff is entitled to as a compensation for his land thus taken for public use has been duly ascertained according to law, and the public officers have issued