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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 appellate court decides factual questions de novo on the record and, as to 

questions of both fact and law, is obligated to reach a conclusion independent of the trial court’s determination.

3. Statutes: Appeal and Error. Statutory interpretation presents a question 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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/12/2020 01:09 AM CDT
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COUNTY OF CEDAR v. THELEN

Cite as 305 Neb. 351

equity will not exercise their power for the purpose of enforcing criminal 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 efficient 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 continuance 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 prevention 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 constituted 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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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 granting a permanent injunction against 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 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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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), alongside a county road. Thelen was ultimately convicted of three 

misdemeanors for re-erecting the same fence in the same location 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 placing 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 prosecution 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 injunctive relief established that the County controls a public road 

running along the south side of Thelen’s property and controls, 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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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 liability 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 traveling 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 property “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

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 conclusion 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 independent 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 rightof-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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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 adequate 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 public 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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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 continuance of wrongful acts. 18

[12,13] Thus, 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. 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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[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 injunction 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 statutes. 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 education and operation of private, denominational, and parochial schools.

In City of Lincoln v. ABC Books, Inc.,

 29 we upheld injunctive relief against an adult bookstore operating fully enclosed 

viewing booths in picture arcades, in violation of a local ordinance that subjected the bookstore to fines. We noted that the 

successful prosecution of the bookstore on three separate occasions 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 carrying out the laws, rules, and regulations concerning bovine 

tuberculosis eradication, even though such same acts constituted 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 violation 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 sanction 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 corporation, 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 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. 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 prosecution provides an adequate remedy at law.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed.