Allen v. Clausen

• Decision Date: 22 April 1902
• Citation: Allen v. Clausen, 114 Wis. 244, 90 N. W. 181 (Wis. 1902)
• Parties: ALLEN v. CLAUSEN ET AL.
• Court: Wisconsin Supreme Court

114 Wis. 244

90 N.W. 181

ALLEN

v.CLAUSEN ET AL.

Supreme Court of Wisconsin.

April 22, 1902.

Appeal from circuit court, Kenosha county; Frank M. Fish, Judge.

Injunction by Mary Hale Allen against Gustav L. Clausen and others.Judgment for plaintiff, and defendant Clausen appeals.Affirmed.

On July 2, 1900, the common council of the city of Kenosha, over the mayor's veto, passed an ordinance granting to Patrick F. Haynes and Gustav L. Clausen, residents and citizens of Chicago, Ill., their associates, personal representatives, and assigns, the right to construct and operate a passenger street railway over certain specified streets in the city of Kenosha, including South street, opposite the plaintiff's premises; also providing that said grantees should have the right to extend and operate such street railway in and along any other street or streets in the city of Kenosha when the written consent of the owners of the land representing more than one-half of the frontage of each street should be obtained.As a condition it was provided that “at the time of the acceptance of this ordinance, and as a condition precedent to obtaining any rights or privileges thereunder, [the grantees should] file with the city clerk * * * a bond, to be approved by the mayor, * * * in the penal sum of fifty thousand dollars, executed as surety by some reputable and satisfactory surety or guaranty company,” with specified conditions, among others, that they should pave certain streets and construct a bridge.It also required them to hold the city harmless from all damages, judgments, etc., resulting from the granting of the privileges, and to file a further bond in the sum of $10,000, with “surety to be approved by the mayor, conditioned upon the faithful performance and observance by said company of all the conditions and provisions of this ordinance.”It also required a deposit of $5,000 in money, and the repayment to certain property owners of the cost, already paid by them, for certain paving; and by the last section it was provided that the ordinance should take effect from and after its acceptance in writing, provided that such acceptance should be filed with the city clerk within 30 days after its passage.The acceptance, together with bonds in attempted compliance, were filed on the 30th day of July; but the $50,000 bond was signed by one individual as surety, and not by any surety or guaranty company, and there was no evidence at the time the case was tried, in October, that the same had been approved by the mayor.The plaintiff, who was the owner of a tract of land having a frontage of about 280 feet on South street and a frontage on two other streets, commenced this action on the 26th day of July, the summons and complaint being served on the defendant Clausen, the other defendants not being found.An order to show cause for a temporary injunction was also served, and heard on July 31st, but was never decided, and did not contain any intermediate restraining order.The complaint alleged purpose and threat by the defendants to build a street railway at the places permitted by the ordinance, and alleged irreparable damage to the plaintiff's premises occupied by her as a residence and ornamented by shade trees, which would be injured or destroyed by the construction and operation of the road.It prayed injunction against their acceptance of the ordinance or entering upon the construction of any railway thereunder, and from operating any railway along any of the streets mentioned in the ordinance and particularly along the streets bounding plaintiff's premises; also that the ordinance be decreed to be invalid and of no effect; and for general relief.The defendants claimed that their ordinance was a valid franchise, conceded that they intended to build on South street, but not upon the other streets bounding plaintiff's premises, and denied injury to the plaintiff's premises.The court, upon trial, filed findings substantially in accordance with the allegations of the complaint, but also found that the ordinance as originally submitted by the defendants was published in the official paper for two weeks before it was acted upon, but that no written application for said franchise or for any franchise was filed by the defendants or either of them with the city clerk of said city, except said draft of ordinance, and that the $50,000 bond had never been approved by the mayor.As conclusions of law, the court decided that that part of the ordinance purporting to give the right to construct a railway generally upon streets other than those specified is void; that the construction and operation opposite plaintiff's premises would constitute a continuing trespass, unless authorized by valid grant from the common council of the city of Kenosha; that by failure to file an approved bond prior to August 1, 1900, as required by section 10 of the ordinance, the grantees failed to acquire or retain any right to the use of said street.Thereupon judgment was entered expressly adjudging that portion of the ordinance attempting to grant general privileges on unspecified streets to be void, and perpetually enjoining and restraining the defendant Clausen, his agents, attorneys, servants, employés, and those claiming under or through him, from entering upon South street where the same abuts upon the premises of the plaintiff, and from laying any rails thereon, or constructing or operating any railway thereon, or erecting or maintaining any trolley poles or wires thereon.That judgment was entered January 9, 1901.On March 12th of the same year and at the same term defendants moved for a new trial on the judge's minutes, and on the ground of newly discovered evidence, to the effect that the mayor had been absent from the city at the time of the trial, having in his possession the $50,000 bond filed by them; that he had treated the same as approved and satisfactory, but on December 6, 1900, had notified defendants of his desire for a bond signed by a surety company, which was thereupon delivered to him, and he, on January 4, 1901, had returned the former bond, accompanied by a letter stating that he had approved the new bond, and with reference to the earlier one said: “This latter bond I have held as approved and satisfactory pending the delivery to me of the guaranty company bond.”This motion was denied by order dated May 15, 1901.Thereafter, on May 18, 1901, and after the expiration of the term at which the judgment had been rendered, the defendants made a further motion based upon the facts above stated with reference to the giving and approval of the new bond, praying that the judgment be annulled, modified, or vacated, and the restraining order thereunder and thereby granted, vacated, or modified, by reason of facts occurring subsequent thereto, or, if that relief should be denied, that the defendants should be permitted to file a bill of review.That motion also was denied by order filed July 15, 1901.The defendant Clausen appeals from the whole of the judgment and from both of said orders.

Gerald R. McDowell, for appellant.

John C. Slater(Charles Quarles, of counsel), for respondent.

DODGE, J.(after stating the facts).

The principal relief granted respondent in the judgment before us is injunction to prevent a strictly private injury to her separate property, which the trial court has, upon sufficient evidence, found will be caused by defendant's threatened entry upon the portion thereof included within South street, and construction of street railway thereon.That injury is not one common to others or to the public.It consists, not in incumbering South street as a public way, nor obstructing general travel thereon, nor in the entry upon lands of others from which they might suffer similar injuries, but in direct entry upon plaintiff's own premises, injuring her in the enjoyment thereof; such injury being irreparable, and not remediable by action at law.That plaintiff must submit to such injury without remedy or compensation, when the acts are done within the street by authority of law, is sustained by a line of decisions from Hobart v. Railroad Co., 27 Wis. 194, 94 Am. Rep. 461, to Linden Land Co. v. Milwaukee Electric Railway & Light Co., 107 Wis. 493, 83 N. W. 851.“But,” as is also said in the last-cited case(page 510, 107 Wis., and page 856, 83 N. W.), “that an abutting lot owner may enjoin the laying of a railway track which is about to be laid without authority of law on the street in front of his premises cannot be doubted for a moment.”

In approaching the question whether the defendant's threatened acts are “by authority of law,”we are confronted by an objection urged by appellant to the effect that, since he claims to act under a franchise from the state, a court of equity cannot inquire as to the...