Ver Straeten v. Lewis ( 1889 )

Reed, C. J.

1. Intoxicating junci'ioii I'lies-property:01 coutumpt. I. The writ enjoined plaintiff from unlawfully selling any intoxicating liquors, including aIe> wine and beer> an<3- &Om keeping, Or being concerned in keeping, the same for sa^e’ contrary to law, either by himself, or agents, clerks, porters or lessees, upon the following described real estate, situated and lying in Poweshiek county, Iowa, to-wit: “ Part of lot number two, in the northeast quarter of the northwest quarter of section twenty-three, township number eighty north, of range number fourteen west, until otherwise ordered by the court.” It was contended that the writ was void for uncertainty. That a writ or order for the abatement of a nuisance which contained no more definite description of the property intended to be affected than that in the writ in question would be void, may be true. In that case, it would not be possible for the officer charged with the duty of executing the writ to determine from its recitals the particular building or place intended. But in this case the principal office of the writ was to prohibit the doing of certain specified acts. In that respect there is no uncertainty in its recitals. Any person, on reading the writ, would understand just what acts were forbidden by it. It prohibits the doing of the acts on “part of lot two,” etc., and the mandate would be violated by doing them on any part of that lot.

2 contempt?évplace of ofeas' II. The evidence, without conflict, shows that plaintiff continued to sell intoxicating liquors after the writ was served. It al so show's that he carried on the business in the building used by him for that purpose when the inj unction proceeding was instituted. No witness, however, was able to testify from his personal knowledge that the building was situated on lot two. But one witness did testify that he had examined a plat of the town in which the property is situated, and that he was able to say from that examination, and his knowledge of the location and the surroundings, that it is situated on the tract described in the writ. It was contended that the evidence of that witness as to the identity of the property is incompetent, being in the nature of mere hearsay. But evidence relating to the description of real estate is nearly always of that character, and necessarily so. The primary evidence of the subdivision of land, as a general rule, is found in the record of the surveys. But it is common practice in the courts to admit parol evidence as to the location and description of particular tracts. The manner of numbering the sections of land in a township, and their subdivisions, are matters of common knowledge in this country, w’here all the lands are included in regular surveys ; and it is perfectly competent in some eases to prove the location of a building or other place, with reference to the subdivisions, by parol, whether the witnesses, by whose testimony it is proven, have any actual knowledge of the surveys or not. The evidence in question is of that character. The witness went to the common source of information as to the subdivision, viz., the plat or map of the locality, and from his examination, and his general acquaintance with the locality, was able to testify that the building occupied by the plaintiff was on the particular tract described in the writ. His testimony was not only competent, but it satisfactorily establishes the fact in question. We do not find, upon an examination of the record, that the district court acted illegally, or in excess of its jurisdiction, in rendering judgment against plaintiff, and this proceeding will accordingly be

Dismissed.