
    H. M. Morgan, Appellant, v. Charles Koestner, Appellee.
    1. Intoxicating Liquors: nuisance: lessor’s liability. Where property was leased for a lawful purpose, aud the lessee used the • same for the illegal sale of intoxicating liquors without the knowledge of the lessor, who, after the issuance of a temporary injunction against him because of said nuisance, notified the lessee to quit the premises, and afterwards, in good faith, prosecuted an action of forcible entry and detainer for the possession of the property, but was denied the relief sought, held, that upon the final hearing of the injunction proceedings the temporary injunction against the lessor was properly dissolved, and the action dismissed as to him, but that the nuisance should, nevertheless, have been abated by order of the court.
    2. -: -: -: costs. The owner of real estate is not liable for the costs of an action for the abatement of a saloon nuisance maintained upon his premises without Ms knowledge or consent.
    
      Appeal from Des Moines District Gowrt.— Hon. Charles H. Phelps, Judge.
    Monday, June 1, 1891.
    Action to abate a saloon nuisance. John Linder and Henry Hirt were made codefendants with Koestner. Koestner was and is the owner of the land on which the saloon was maintained. He leased it to Louis Bannier for five years, with authority to erect a building thereon for “confectionery purposes.” Upon a preliminary hearing in this suit, a temporary injunction was granted against Koestner, and thereafter he notified Bannier to quit the premises, and remove his building, and, upon his neglect or refusal, Koestner instituted a proceeding for the forcible entry and detention of real property against Bannier, who resisted, and a judgment was entered in his favor before the justice, and also on appeal to the district court, as we understand, on the ground, that Bannier was not a party to the suit, and in no manner bound by its proceeding. These facts were pleaded by Koestner on the final hearing in this suit, and by the proofs it was found that John Linder was maintaining the nuisance; that Koestner is the owner in reversion of the real estate. The temporary injunction was dissolved as to Koestner, and the action dismissed as to him and Henry Hirt. A decree was entered against John Linder. From the judgment as to Koestner the plaintiff appeals.
    
    Affirmed.
    
      Nernncm é Blake, for appellant.
    P. Henry Smytli, for appellee.
   Granger, J.

I. It is for us to determine the legal effect of the facts pleaded and proved by the defendant Koestner. These facts are, as we understand, that he leased the lot to Bannier for five years, with the right to Bannier to construct a building thereon for confectionery purposes; that the building was erected, and the defendant Linder conducted a saloon therein; that Koestner did not know the purpose to which the building was put; that, after the granting of the temporary injunction, Koestner notified Bannier to quit the premises and remove the building, which was not done; that Koestner then prosecuted his suit for the forcible entry and detention of real property, under the law in such cases, to terminate his lease; and that in the trial of such suit, both original and on appeal, he was defeated. The facts thus far are without dispute. It is, however, questioned in argument that Koestner, in leasing the lot and in his efforts to prevent its use as a saloon, acted in good faith. "We see nothing in the record to justify us in finding that, when the lot was leased to Bannier, Koestner intended or knew that it would be used for saloon purposes, or that he knew it was being so used before. this suit Was commenced. After obtaining tbe knowledge, be seemed powerless to prevent sucb use. He resorted to tbe courts for a judgment tbat would terminate bis lease, and give bim control of tbe lot, but tbe judgment was refused and tbe query forces itself upon our. minds, if be could not prevent sucb use, will tbe law, by injunction, command bim to, and punisb bim if be does not? We need not express tbe answer.

Tbe original notice in tbis case was served July 8, 1889, and gave notice tbat tbe petition would be filed on or before tbe twenty-nintb of August, 1889. Tbe answer was filed September 16., 1889, and on tbe twentieth of November, after, notice was given of an application for a temporary writ of injunction, wbicb was issued on tbe fifth of December, 1889. It was after tbe issuance of tbe writ tbat Koestner commenced bis suit to revoke tbe lease and obtain possession of bis property,. and this fact is urged as showing bad faith and unnecessary delay. But tbe facts upon wbicb tbe adjudication was against Koestner were tbe same during all tbe time, and we' must assume tbat with like facts a like judgment would have been entered. It thus appears tbat during all tbe time after be bad knowledge of tbe use of tbe lot be was without tbe means to prevent it. Tbe effect of tbe delay complained of was not to continue or encourage tbe nuisance. Under sucb a state of facts, it is clear to. us tbat Koestner should not be made liable for tbe penalties of an injunction against tbe continuance of tbe nuisance by another.

Tbe lot and building were by tbe district court found to be a place where intoxicating liquors were kept and sold contrary to law, and hence it was a nuisance, and should, by tbe judgment of tbe court, have been abated, notwithstanding who may have been tbe owners. Code, sec. 1543. Tbe court found tbat John Linder was tbe person occupying tbe premises and maintaining tbe nuisance. It enjoined bim from further maintaining the nuisance, but did not decree its abatement, as the .law provides. Acts, 20th Gren. Assem., ch. 143, sec. 5; McClure v. Braniff, 75 Iowa, 38. The law makes provision for the owner, in such case, to release his property from the effect of such a decree. A decree ..abating the nuisance will be entered in this court.

II. The remaining question is as to the liability of Koestner for the costs; that is, should the costs have been decreed a lien upon the lot? The owner who does not maintain the nuisance is thus made liable when the premises are so used, with his knowledge or that of his agent. Code, sec. 1558. It does not appear in this case that Koestner had such knowledge. The facts upon which the appellant relies, as those from which we should presume or find the fact of knowledge, are insufficient. It is a fact that the opposition to the enforcement of the law against the sale of intoxicating liquor has led to many ingenious methods of evasion, and the courts : should be alert and cunning to see the truth within the lines of correct information, and, when seen, unhesitatingly apply it. On the other hand, they should so guard their judgments that they be the result of facts found from evidence, rather than unwarranted presumptions. It is presumed that the owner and lessee •of the building was, at the commencement of the suit, unknown to the prosecution, as he was not the occupant. Had he been made a party, much of the difficulty ¡in the way of the judgment sought would have been avoided.

With the modification indicated in the opinion, to be entered in this court, the judgment will be affirmed.  