Hughes v. Dunlap

McFarland, J. In the complaint, plaintiff avers that he is the owner and in possession of a large tract of land, valuable mainly for pasturage, for which purpose he has it inclosed by a substantial fence; that “ during the last two months ” defendant has torn down and destroyed said fence at various points, and threatens to continue to do so, to plaintiff’s damage in the sum. of five thousand dollars. It is further averred that defendant is insolvent, and that if he continues to destroy and keep open said fence, he will cause plaintiff irreparable damage. The prayer is for judgment for five thousand dollars damage, and an injunction to restrain defendant from continuing said acts.

The answer of defendant contains a denial of the averments of the complaint, and for a separate defense avers that there are, and for more than twenty-five years have been, certain public roads over and through said land; that recently plaintiff had built fences across said public roads; that defendant is road-overseer of the district, and that in discharge of his duties as such he had removed the said fences where they crossed and ob[388]structed said roads, but had not interfered with said fences at any other place.

At the trial a jury was- impaneled on motion of defendant; and certain issues of fact were referred to the jury concerning the existence of public roads over the land, what damage, if any, was done plaintiff by the acts of defendant, etc. The jury returned a verdict on all such issues favorable to defendant, and found that there were certain public roads where defendant had removed the fences, and that plaintiff had suffered no damage. Afterwards the court made findings in which it states that it “ refuses to adopt said findings of the jury, and rejects each and every thereof,” and proceeds to find all the issues which had been passed on by the jury the other way, and favorably to plaintiff, and finds that plaintiff was damaged by said acts of defendant in the sum of one hundred dollars. Upon these findings judg. ment was rendered against defendant for one hundred dollars damage and costs, and perpetually enjoining him » from opening or interfering with said fences. From this judgment, and from an order denying a new trial, defendant appeals.

The first point made by appellant is, that the court erred in disregarding the verdict of the jury, and setting it aside without the proceeding of a motion for a new trial. This point is certainly well taken, so far, at least, as the issue of damages is concerned. It has long since been held that under our system a legal and equitable remedy may be sought in the same action; but each remedy must be governed by the same law that would apply to it if the other remedy had not also been asked for. An action to recover damages for past trespasses is as clearly a legal remedy as any that could be named; and it is an action in which a party cannot be deprived of a .jtiry trial. For this reason, therefore, the judgment, and order must be reversed.