## Facts

- Cedar County, Nebraska, controlled a public road running along the south side of John E. Thelen’s property and controlled, maintained, and was responsible for the road’s 66-foot right-of-way (33 feet on each side of the centerline).
- The County asserted it had a legal duty to keep the right-of-way free of obstructions and could face liability if it failed to do so.
- Beginning in 2013, Thelen continuously and repeatedly erected an electric fence along the road and within the County’s right-of-way, in the ditch area within 33 feet of the road’s centerline.
- County officials gave Thelen notice to remove the fence, but he refused and continued reinstalling the same type of fence in the same location.
- Thelen was charged with three misdemeanor counts of obstructing a public road under Neb. Rev. Stat. § 39-301 (Reissue 2016) based on re-erecting the fence on August 31 and September 6 and 13, 2016; he was convicted, and his convictions were affirmed in a separate criminal appeal.
- The County filed a civil action seeking a permanent injunction to stop Thelen from placing fences or other obstructions within the road right-of-way.
- After a bench trial on stipulated evidence, the district court granted a permanent injunction prohibiting Thelen from encroaching on the road right-of-way “33 feet in either direction from the centerline,” including road ditches within that distance, by placing fences or other obstructions or causing others to do so.
- Thelen appealed, arguing (1) the ditch was not part of the “public road” under § 39-301 and (2) criminal enforcement was an adequate remedy, so injunctive relief should not issue.

## Issues

1. Whether the ditch area within the county road’s 66-foot right-of-way is part of the “public road” under Neb. Rev. Stat. § 39-301, so that an electric fence placed there is an unlawful obstruction.
2. Whether repeated misdemeanor prosecutions under § 39-301 provided an adequate remedy at law, making a permanent injunction improper.

## Decision

- The Nebraska Supreme Court affirmed the district court’s permanent injunction.
- The court held that the ditch area within the 66-foot right-of-way is part of the “public road” for purposes of § 39-301, and Thelen’s fence in that area constituted an obstruction under the statute.
- The court held that equitable relief was proper because Thelen’s repeated conduct—continuing even after convictions—showed that successive criminal prosecutions were not an adequate remedy at law to prevent continued interference with the County’s right-of-way obligations.

## Legal Principles

- An action for an injunction sounds in equity; on appeal, the Nebraska Supreme Court reviews equity matters de novo on the record and reaches its own conclusions on fact and law.
- Statutory interpretation is a question of law reviewed independently.
- An injunction is an extraordinary remedy and generally requires a clear right, irreparable harm, and an inadequate remedy at law to prevent a failure of justice.
- In repeated-encroachment or continuing trespass situations, equity considers the continuing or repeatedly renewed nature of the interference, not merely the amount of damage from any single incident.
- For § 39-301, a “public road” may extend to the full right-of-way under county control and maintenance responsibility, including the drainage ditch within that right-of-way.

## Conclusion

The Nebraska Supreme Court affirmed a permanent injunction barring a landowner from erecting an electric fence or other obstructions within 33 feet of a county road’s centerline, including the ditch, holding that the ditch within the 66-foot right-of-way is part of the “public road” under § 39-301 and that ongoing violations after misdemeanor convictions made criminal enforcement an inadequate remedy.


County of Cedar v. Thelen, 305 Neb. 351, 940 N.W.2d 521 (2020)