Chancy Converse et al. v. Horace A. Hawkins.
1. An appeal may be taken to the district court,' under section 5 of the act of April 12, 1858, as amended May 16,1868 (S. & S. 589), from a decree of the court of common pleas, granting a perpetual injunction restraining the defendant from obstructing and from continuing obstructions alreadj- placed upon an alleged road, in which the plaintiff claimed a special use, although the plaintiff also claimed, in his petition, damages occasioned by such obstructions.
2. Such an action is in the nature of a bill in equity for injunction, and, in cidentally, for an account, in which neither party is entitled to demand a trial by jury.
Motion for leave to file a petition in error to the District Court of Portage county.
W. B. Thomas, for the motion.
Rocfaoell $ Nevins and J. D. TIorton, contra.
Horace A. Hawkins, plaintiff below,
alleged in his petition that he was the owner and occupier of a farm in Portage county; that the only egress and ingress were by means of a certain township or private road through the lands of defendant, which had been used by plaintiff, *210and those under whom he held, for a period of fifty years; that the defendants had obstructed the road, to his damage, and threatened to further obstruct the same, and would do so, unless restrained by an order of the court. The prayer of the petition was for a judgment for the damages sustained, and an injunction restraining the defendants from .placing obstructions on the road.
The defendants answered that the locus in quo was upon the lands of said Chancy Converse, and denied the existence of either a public or private way, thereon, as alleged in the petition.
On the trial in the court of common pleas, the court found in favor of the plaintiff; but the only relief granted was an injunction against obstructing the alleged road.
Erom this decree, the defendants appealed to the district court. On motion, the district court dismissed the appeal, on the ground that the action was not appealable.
By the Court.
The district court erred in dismissing the appeal. The original petition was in the nature of a bill in -.equity for an injunction, and, incidentally, for an account. There was but one cause of action stated. The right of the plaintiff to an account in the action depended on his right to an injunction. Neither party had a right to demand a trial by jury. The case does not fall within the act of Eebruary 10, 1864, to juevent multiplicity of actions, wherein an aetion to enforce a lien, and for a personal judgment for the amount claimed to be due, is put on the footing of an action for the recovery of money only. The cause of aetion stated in the petition below was not for the recovery of money only, and was, therefore, appealable, under section 5 of the act of April 12, 1858, as amended May 16, 1864 (S. & S. 589).
"Whether the plaintiff belo.w was entitled to relief in equity, before he had established before a jury his right to the use of the alleged road, in an action for the recovery of damages only, is a question not before us. That question could only ai’ise in the district court, by entertaining *211the appeal. This is a matter relating to the merits of cause, and not to the jurisdiction of the court.
Motion granted, judgment of district court reversed, and cause remanded.