County of Cedar v. Thelen , 305 Neb. 351 ( 2020 )


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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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    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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    COUNTY OF CEDAR v. THELEN
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    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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    COUNTY OF CEDAR v. THELEN
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    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
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    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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    COUNTY OF CEDAR v. THELEN
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    [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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    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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    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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    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.