County of Cedar v. Thelen ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/27/2020 09:07 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
COUNTY OF CEDAR v. THELEN
Cite as 305 Neb. 351
County of Cedar, Nebraska, a body
politic and corporate, appellee,
v. John E. Thelen, appellant.
___ N.W.2d ___
Filed March 20, 2020. No. S-19-605.
1. Injunction: Equity. An action for injunction sounds in equity.
2. Equity: Appeal and Error. On appeal from an equity action, an appel-
late court decides factual questions de novo on the record and, as to
questions of both fact and law, is obligated to reach a conclusion inde-
pendent of the trial court’s determination.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
4. Injunction. An injunction is an extraordinary remedy, and it ordinarily
should not be granted unless the right is clear, the damage is irreparable,
and the remedy at law is inadequate to prevent a failure of justice.
5. Trespass: Injunction: Equity. In trespass cases, equity looks to the
nature of the injury inflicted, together with the fact of its constant
repetition, or continuation, rather than to the magnitude of the damage
inflicted, as the ground of affording relief.
6. Injunction: Municipal Corporations: Statutes: Ordinances. Evidence
of a violation of a valid statute or ordinance is sufficient to warrant the
issuance of a permanent injunction to a municipality or public entity
seeking to prevent further violations.
7. Municipal Corporations: Ordinances: Public Health and Welfare:
Presumptions. Irreparable harm to public rights, property, or welfare
is presumed to result from actions which by municipal ordinance have
been declared unlawful.
8. Criminal Law: Injunction: Equity. Where acts complained of are in
violation of the criminal law, courts of equity will not, on that ground
alone, interfere by injunction to prevent their commission, as courts of
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
COUNTY OF CEDAR v. THELEN
Cite as 305 Neb. 351
equity will not exercise their power for the purpose of enforcing crimi-
nal laws.
9. ____: ____: ____. Because equity, as a general rule, has no criminal
jurisdiction, equity will not interfere to punish crime. Something more
than a violation of the law is required to justify the exercise of equity’s
powers.
10. Injunction: Statutes: Ordinances: Public Health and Welfare. A
permanent injunction against repetitive unlawful violations of statutes
or ordinances is not a form of punishment for what has been done, but
the prevention of future irreparable harm to public rights, property, or
welfare.
11. Injunction: Equity: Words and Phrases. An adequate remedy at law
means a remedy which is plain and complete and as practical and effi-
cient to the ends of justice and its prompt administration as the remedy
in equity, and a remedy at law is not adequate if the situation requires
and the law permits preventative relief against the repetition and con-
tinuance of wrongful acts.
12. Injunction: Equity: Nuisances. A court of equity may, at the instance
of properly constituted authority, issue an injunction in the case of a
public nuisance, when its issuance will give more complete relief than
can be afforded in a court of law.
13. Injunction: Statutes: Public Health and Welfare: Nuisances. An
injunction is a proper remedy to be used by the state in the protection of
public rights, property, or welfare, whether or not the acts complained of
violate a penalty statute and whether or not they constitute a nuisance.
14. Criminal Law: Equity: Statutes. The rule that equity will not interfere
to enforce criminal law, which ordinarily provides an adequate remedy
at law, does not have the force of denying such a remedy in the pre-
vention of public wrongs arising out of either continuous or repeated
violations of a penalty statute which harmfully affects the interests of
the public.
15. Criminal Law: Equity: Statutes: Public Health and Welfare. There
is a well-recognized exception to the general rule that enforcement
of criminal laws provides an adequate remedy, namely, that where
a more complete remedy is afforded by injunction than by criminal
prosecution, a court of equity may, at the instance of properly con-
stituted authorities, afford relief by injunction in order to protect the
public welfare.
16. Criminal Law: Injunction: Equity. A court of equity may properly
afford injunctive relief where there has been a continuing and flagrant
course of violations of the law, even though these acts may be subject to
criminal prosecution.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
COUNTY OF CEDAR v. THELEN
Cite as 305 Neb. 351
17. Legislature: Intent: Highways: Public Health and Welfare. The clear
legislative intent in the regulatory scheme governing public roads, and
in Neb. Rev. Stat. § 39-301 (Reissue 2016) specifically, is the protection
of the public who use those roads.
18. Criminal Law: Legislature: Highways: Public Health and Welfare. It
is in the interest of the public to prevent obstructions of the public roads,
both for their maintenance and more direct safety, and the mere fact that
the Legislature has enacted a criminal law addressing the subject does
not mean that the subject matter is preempted.
Appeal from the District Court for Cedar County: Paul J.
Vaughan, Judge. Affirmed.
Bradley C. Easland, of Egley, Fullner, Montag, Morland &
Easland, P.C., for appellant.
Mark D. Fitzgerald, of Fitzgerald, Vetter, Temple, Bartell &
Henderson, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
A landowner appeals from an order in a civil action grant-
ing a permanent injunction against encroaching on the public
road right-of-way 33 feet in either direction from the center-
line, including those road ditches within that distance from
the centerline, by erecting or placing fences or by placing
or leaving any type of obstruction or obstacle thereon, or by
causing another to do these actions. The central question in
this appeal is whether criminal misdemeanor proceedings
provide an adequate remedy at law, which render injunctive
relief improper.
BACKGROUND
The civil complaint for a permanent injunction in this case
was brought at the same time as a criminal complaint charging
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
COUNTY OF CEDAR v. THELEN
Cite as 305 Neb. 351
John E. Thelen with three counts of obstructing a public road
in violation of Neb. Rev. Stat. § 39-301 (Reissue 2016), based
on repeated instances of erecting an electric fence within the
ditch right-of-way of Cedar County, Nebraska (County), along-
side a county road. Thelen was ultimately convicted of three
misdemeanors for re-erecting the same fence in the same loca-
tion on August 31 and September 6 and 13, 2016. In State v.
Thelen, 1 we affirmed Thelen’s convictions on three counts of
violating § 39-301.
Following a bench trial on stipulated evidence, the district
court granted an injunction against Thelen’s encroaching on
the public road right-of-way 33 feet in either direction from
the centerline, including those road ditches within that distance
from the centerline, by erecting or placing fences or by plac-
ing or leaving any type of obstruction or obstacle thereon, or
by causing another to do these actions. The court concluded
that “the entire 33-foot area from the center of 870 Road to
the north into the road ditch” was part of the “public road”
described by § 39-301. The court found that Thelen had
“repeatedly and flagrantly” violated Nebraska statutes relating
to the road rights-of-way and that successive criminal prosecu-
tion had proved to be an inadequate remedy.
Like in the criminal case discussed in Thelen, the evidence
presented for purposes of the County’s complaint for injunc-
tive relief established that the County controls a public road
running along the south side of Thelen’s property and con-
trols, maintains, and is responsible for its 66-foot right-of-way.
Both the County’s highway superintendent, Carla Schmidt, and
the chairman of the County’s board of commissioners, David
McGregor, averred that, since 2013, Thelen has continuously
and repeatedly placed a fence within the County’s right-of-way
and has refused to voluntarily remove his fence after being
given reasonable notice to do so.
1
State v. Thelen, ante p. 334, ___ N.W.2d ___ (2020).
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305 Nebraska Reports
COUNTY OF CEDAR v. THELEN
Cite as 305 Neb. 351
According to Schmidt, for purposes of moving his cattle
from one pasture to another, Thelen regularly placed his fence
in the County’s ditch right-of-way beginning in June and
removed it in October or November. Schmidt noted that the
fence had been repeatedly placed a mere 161⁄2 feet from the
roadway centerline.
McGregor averred that it was the County’s duty to keep
its public roads’ rights-of-way, especially its ditches, free of
debris, crops, fences, or any other obstructions. McGregor
described that such obstructions presented a safety issue and
that the County would subject itself to the loss of its tort liabil-
ity insurance coverage if it failed to keep its ditches free of
obstructions.
Schmidt similarly averred that the fences repeatedly placed
by Thelen in the County’s right-of-way endangered the travel-
ing public and created liability for the County for the failure to
comply with its statutory duty under § 39-301 to remove road
obstacles.
Schmidt opined that an alternative solution would be for
Thelen to remove or not plant four to six rows of corn in order
for his cattle to reach his pasture by simply crossing his prop-
erty “without trespassing on the county road.” Schmidt asserted
that she had repeatedly told Thelen that he cannot use the ditch
right-of-way and asked him to move the fence onto his own
property, “all to no avail.”
According to the evidence submitted, Thelen has erected the
same type of fence in the same location at least seven times and
the County has repeatedly incurred the costs associated with
removing the fence. Affidavits established that in 2013 and
2014, Thelen had re-erected the same type of fence in the same
location within the County’s right-of-way, refusing to remove
it when asked to do so. Then, in 2015, Thelen was found guilty
of violating § 39-301 for erecting the same type of fence in the
same location in July. Thereafter, in September, Thelen placed
his fence anew in the County’s right-of-way. Thelen re-erected
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
COUNTY OF CEDAR v. THELEN
Cite as 305 Neb. 351
the fence on August 31 and September 6 and 13, 2016, each
time after law enforcement had removed it. These three acts led
to the criminal convictions affirmed in Thelen. 2
According to Schmidt, Thelen “has indicated that he will
continue to disregard my notices in the future because the fine
is only $25.00, indicating cheap pasture rent.”
ASSIGNMENTS OF ERROR
Thelen assigns that the district court erred in (1) finding that
placing the electric fence in the ditch violated § 39-301 and (2)
failing to find that the County had an adequate remedy at law.
STANDARD OF REVIEW
[1] An action for injunction sounds in equity. 3
[2] On appeal from an equity action, an appellate court
decides factual questions de novo on the record and, as to
questions of both fact and law, is obligated to reach a conclu-
sion independent of the trial court’s determination. 4
[3] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision made by the court
below. 5
ANALYSIS
Thelen asserts, as he did in the appeal from his misdemeanor
convictions affirmed in Thelen, that the County’s ditch right-
of-way alongside the county roadway does not constitute a
“public road” for purposes of § 39-301. 6 We have already
discussed this question thoroughly in Thelen, wherein we held
that a “public road” in § 39-301 includes the entire area within
2
See State v. Thelen, supra note 1.
3
Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926 N.W.2d
610 (2019).
4
Id.
5
Saylor v. State, 304 Neb. 779, 936 N.W.2d 924 (2020).
6
See State v. Thelen, supra note 1.
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305 Nebraska Reports
COUNTY OF CEDAR v. THELEN
Cite as 305 Neb. 351
the county’s right-of-way. 7 We thus find no merit to Thelen’s
first assignment of error.
Thelen alternatively asserts in his second assignment of
error that criminal misdemeanor proceedings provide an ade-
quate remedy at law, which render the present injunctive relief
improper despite his repeated violations of § 39-301. We
disagree.
[4-7] An injunction is an extraordinary remedy, and it
ordinarily should not be granted unless the right is clear, the
damage is irreparable, and the remedy at law is inadequate to
prevent a failure of justice. 8 In trespass cases, equity looks
to the nature of the injury inflicted, together with the fact
of its constant repetition, or continuation, rather than to the
magnitude of the damage inflicted, as the ground of affording
relief. 9 We have consistently regarded evidence of a violation
of a valid statute or ordinance as sufficient to warrant the
issuance of a permanent injunction to a municipality or pub-
lic entity seeking to prevent further violations. 10 Irreparable
harm to public rights, property, or welfare is presumed to
result from actions which by municipal ordinance have been
declared unlawful. 11
[8,9] Nevertheless, Thelen relies on the general rule that
the prosecution of criminal offenses is normally a complete
and sufficient remedy at law. It is the general rule that acts
punishable by fine will not ordinarily be enjoined. 12 We have
explained that where acts complained of are in violation of
the criminal law, courts of equity will not, on that ground
alone, interfere by injunction to prevent their commission, as
7
Id.
8
See Lambert v. Holmberg, 271 Neb. 443, 712 N.W.2d 268 (2006).
9
Id.
10
State ex rel. City of Alma v. Furnas Cty. Farms, 266 Neb. 558, 667 N.W.2d
512 (2003).
11
Id.
12
State v. Chicago & N. W. Ry. Co., 147 Neb. 970, 25 N.W.2d 824 (1947).
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COUNTY OF CEDAR v. THELEN
Cite as 305 Neb. 351
courts of equity will not exercise their power for the purpose
of enforcing criminal laws. 13 Because equity, as a general rule,
has no criminal jurisdiction, equity will not interfere to punish
crime. 14 Something more than a violation of the law is required
to justify the exercise of equity’s powers. 15
[10,11] A permanent injunction against repetitive unlawful
violations of statutes or ordinances, however, is not a form
of punishment for what has been done, but the prevention of
future irreparable harm to public rights, property, or welfare. 16
An adequate remedy at law means a remedy which is plain and
complete and as practical and efficient to the ends of justice
and its prompt administration as the remedy in equity, 17 and a
remedy at law is not adequate if the situation requires and the
law permits preventative relief against the repetition and con-
tinuance of wrongful acts. 18
[12,13] Thus, a court of equity may, at the instance of prop-
erly constituted authority, issue an injunction in the case of a
public nuisance, when its issuance will give more complete
relief than can be afforded in a court of law. 19 We have also
held that an injunction is a proper remedy to be used by the
state in the protection of public rights, property, or welfare,
whether or not the acts complained of violate a penalty statute
and whether or not they constitute a nuisance. 20
13
See State, ex rel. Hunter, v. The Araho, 137 Neb. 389, 289 N.W. 545
(1940).
14
See id.
15
F. Lee Bailey & Kenneth J. Fishman, Handling Misdemeanor Cases § 10:8
(2d ed. 1992).
16
See, e.g., State, ex rel. Hunter, v. The Araho, supra note 13.
17
Hogelin v. City of Columbus, 274 Neb. 453, 741 N.W.2d 617 (2007).
18
Id.
19
See State, ex rel. Sorensen, v. Ak-Sar-Ben Exposition Co., 121 Neb. 248,
236 N.W. 736 (1931).
20
State ex rel. City of Alma v. Furnas Cty. Farms, supra note 10; State ex rel.
Meyer v. Knutson, 178 Neb. 375, 133 N.W.2d 577 (1965).
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305 Nebraska Reports
COUNTY OF CEDAR v. THELEN
Cite as 305 Neb. 351
[14,15] Stated another way, the rule that equity will not
interfere to enforce criminal law, which ordinarily provides an
adequate remedy at law, does not have the force of denying
such a remedy in the prevention of public wrongs arising out
of either continuous or repeated violations of a penalty statute
which harmfully affect the interests of the public. 21 There is a
well-recognized exception to the general rule that enforcement
of criminal laws provides an adequate remedy, namely, that
where a more complete remedy is afforded by injunction than
by criminal prosecution, a court of equity may, at the instance
of properly constituted authorities, afford relief by injunction
in order to protect the public welfare. 22
[16] A court of equity may properly afford injunctive relief
where there has been a continuing and flagrant course of
violations of the law, even though these acts may be subject
to criminal prosecution. 23 Injunction is properly used for the
protection of public rights, property, or welfare, whether or
not such acts violate a penalty statute and whether or not they
constitute a nuisance. 24
There are numerous examples of this exception. In State
ex rel. Meyer v. Weiner, 25 we upheld a permanent injunc-
tion against continuously engaging in unlicensed real estate
practices, and in State ex rel. Meyer v. Knutson, 26 we upheld
a permanent injunction against continuously engaging in the
practice of professional architecture without a license, both
21
See, e.g., City of Lincoln v. ABC Books, Inc., 238 Neb. 378, 470 N.W.2d
760 (1991); State v. Chicago & N. W. Ry. Co., supra note 12.
22
See State, ex rel. Spellman, v. Heldt, 115 Neb. 435, 213 N.W. 578 (1927).
23
State ex rel. Douglas v. Wiener, 220 Neb. 502, 370 N.W.2d 720 (1985);
State ex rel. Douglas v. Faith Baptist Church, 207 Neb. 802, 301 N.W.2d
571 (1981). See State ex rel. Meyer v. Weiner, 190 Neb. 30, 205 N.W.2d
649 (1973).
24
State ex rel. Meyer v. Weiner, supra note 23.
25
Id.
26
State ex rel. Meyer v. Knutson, supra note 20.
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COUNTY OF CEDAR v. THELEN
Cite as 305 Neb. 351
of which violated criminal statutes. In State ex rel. Douglas
v. Wiener, 27 we upheld injunctive relief against a husband
and wife who operated a private homeschool in continuing
and flagrant violation of then-existing rules and regulations
of the State Department of Education and Nebraska stat-
utes. In State ex rel. Douglas v. Faith Baptist Church, 28 we
upheld injunctive relief against a church, despite the fact that
the church was subject to penal sanctions, for violations of
the various statutory provisions relating to compulsory edu-
cation and operation of private, denominational, and paro-
chial schools.
In City of Lincoln v. ABC Books, Inc., 29 we upheld injunc-
tive relief against an adult bookstore operating fully enclosed
viewing booths in picture arcades, in violation of a local ordi-
nance that subjected the bookstore to fines. We noted that the
successful prosecution of the bookstore on three separate occa-
sions for violations of the ordinance had not resulted in the
removal of the fully enclosed booths. In State ex rel. Spellman,
v. Heldt, 30 we upheld injunctive relief to restrain and enjoin
a cattle owner from interfering and preventing agents of the
Department of Agriculture from entering his premises and car-
rying out the laws, rules, and regulations concerning bovine
tuberculosis eradication, even though such same acts consti-
tuted a criminal offense punishable by fine.
In State v. Chicago & N. W. Ry. Co., 31 we upheld injunctive
relief against a railroad company from continuing to operate
certain mainline switch stands without proper lights, in vio-
lation of a penal statute subjecting the railroad to a fine. We
explained that an injunction was the proper remedy because the
27
State ex rel. Douglas v. Wiener, supra note 23.
28
State ex rel. Douglas v. Faith Baptist Church, supra note 23.
29
City of Lincoln v. ABC Books, Inc., supra note 21.
30
State, ex rel. Spellman, v. Heldt, supra note 22.
31
State v. Chicago & N. W. Ry. Co., supra note 12.
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COUNTY OF CEDAR v. THELEN
Cite as 305 Neb. 351
safety of the traveling public required that the regulations at
issue be enforced. Similarly, in State v. Pacific Express Co., 32
we upheld an injunction against the railroad company against
unlawful, exorbitant, and unconscionable rates and charges in
the use of eminent domain for the public, despite penal sanc-
tion statutes pertaining to the same conduct. We said that the
state, in its sovereign capacity, can appeal to the courts for
relief by injunction whenever either its property is involved or
public interests are threatened and jeopardized by any corpora-
tion, especially one of a public nature like a railroad company,
seeking to transcend its powers and to violate the public policy
of the state.
[17,18] In Thelen, we discussed in detail the statutory scheme
relating to the prohibition of obstructing a roadway found in
§ 39-301, of which Thelen has been convicted of violating
numerous times. 33 We will not reiterate that analysis here. The
clear legislative intent in the regulatory scheme governing
public roads, and in § 39-301 specifically, is the protection of
the public who use those roads. It is in the interest of the pub-
lic to prevent obstructions of the public roads, both for their
maintenance and more direct safety, and the mere fact that the
Legislature has enacted a criminal law addressing the subject
does not mean that the subject matter is preempted. 34 We find
nothing in the statutes pertaining to obstruction of public roads
that could be construed as demonstrating an intent to preempt
the equitable remedy of injunctive relief.
In this case, where Thelen repeatedly erected an electric
fence in the ditch right-of-way in violation of a valid statute,
the preventative remedy of an injunction is the only manner in
which to obtain a complete remedy. The remedy of injunctive
relief here is not to punish Thelen, but to protect the public
32
State v. Pacific Express Co., 80 Neb. 823, 115 N.W. 619 (1908).
33
State v. Thelen, supra note 1.
34
See State ex rel. City of Alma v. Furnas Cty. Farms, supra note 10.
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COUNTY OF CEDAR v. THELEN
Cite as 305 Neb. 351
from future repetitive acts. Multiple criminal prosecutions have
done nothing to curb Thelen’s behavior, and, indeed, Thelen
has expressed the opinion that the fines associated with even
repeated criminal misdemeanor convictions are “cheap pasture
rent.” It is in the interests of the public welfare to prevent this
repetitive illegal act. We find no merit to Thelen’s argument
that injunctive relief was improper because criminal prosecu-
tion provides an adequate remedy at law.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.