Le Blond v. Town of Peshtigo

• Decision Date: 12 November 1909
• Parties: LE BLOND v. TOWN OF PESHTIGO ET AL.
• Court: Wisconsin Supreme Court

140 Wis. 604

123 N.W. 157

LE BLOND

v.TOWN OF PESHTIGO ET AL.

Supreme Court of Wisconsin.

Nov. 12, 1909.

Appeal from Circuit Court, Marinette County; Samuel D. Hastings, Judge.

Action by Katherine Le Blond against the Town of Peshtigo and others. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

The complaint, in substance, charges that the town of Peshtigo is one of the duly organized towns of Marinette county, and that the other defendants are, and at all the times mentioned in the complaint were, the duly elected, qualified, and acting supervisors of said town; that the defendants during the month of August, 1905, entered upon certain lands owned by and in the possession of plaintiff, and tore down fences, cut and removed valuable timber, and constructed a highway and drain thereon at a cost of $500, which was paid by the defendant town; that said defendants never acquired any right by consent of the plaintiff or otherwise to appropriate any portion of her land; and that she has been damaged in the sum of $900 by reason of the unlawful act complained of. The complaint further sets forth that ever since August 12, 1905, defendants have continued to unlawfully use the premises appropriated for a drain and public highway, and that certain of the defendants threaten and assert that, if plaintiff attempts to fence up the pretended drain and highway, they will tear down such fences and obstructions and continue to use the same, and that said defendants have ever since the 12th day of August, 1905, permanently deprived the plaintiff of the use and enjoyment of that portion of the premises appropriated by the defendants, and that plaintiff fears the defendants will carry out the threats aforesaid, and will harass, vex, and annoy the plaintiff, and that plaintiff has been put to irreparable injury, and will be put to the necessity of bringing a multiplicity of actions to protect her rights. By way of relief, plaintiff asks that the defendants, their agents and servants, be enjoined and restrained from taking possession or attempting to take possession of the strip of land in question, and also from in any manner interfering with the enjoyment, use, and occupation thereof by the plaintiff, and that plaintiff recover $900 damages done and suffered by reason of the unlawful acts complained of. One of the grounds of demurrer was that the complaint did not state facts sufficient to constitute a cause of action. This is the only ground relied on to sustain the order appealed from.

Winslow, C. J., dissenting.L. M. Nelson (P. A. Martineau, of counsel), for appellant.

W. B. Quinlan and Henry T. Scudder, for respondents.

BARNES, J. (after stating the facts as above).

By her complaint the plaintiff seeks to recover possession of her property and damages for the wrongs she has sustained. If, under the facts stated, she is not entitled to resort to a court of equity to secure this relief, then the demurrer was properly sustained. As a general proposition, equity will not interfere to prevent a mere threatened trespass unless such trespass will work irreparable injury. Where, by reason of the continuous character of the invasion, numerous actions at law would be necessary, equity will interfere to prevent a multiplicity of suits because the legal remedy is inadequate. Miller v. Hoeschler, 121 Wis. 558, 99 N. W. 228, 7 L. R. A. (N. S.) 49. Sufficient facts are not stated in the complaint to bring it within the principle of the case cited. Neither are the necessary facts stated to bring it within the decisions of this court in Flanders v. Town of Wood, 24 Wis. 572,Church v. School District, 55 Wis. 399, 13 N. W. 272,Smart v. Hart, 75 Wis. 471, 44 N. W. 514,Ruhland v. Jones, 55 Wis. 673, 13 N. W. 689,De Pauw v. Oxley, 122 Wis. 656, 100 N. W. 1028, 13 L. R. A. (N. S.) 173, and McCord v. E. Ry. Co. of Minn., 136 Wis. 254, 116 N. W. 845, in all of which cases equity jurisdiction was sustained. The complaint does not allege that any particular injury or mischief will result from any threatened injury by the defendants during the pendency of the action, and no temporary restraining order is sought. There is no averment in the complaint from which it could be inferred that the pleader desired any relief except to be restored to possession and to recover damages sustained prior to the institution of the suit. The single allegation relied on to bring the case within the rule that equity will take jurisdiction where it is necessary to do so to prevent a multiplicity of suits is that certain defendants threaten and assert that, if plaintiff fences up the highway, they will tear down the fence and continue to use and occupy the same, and that plaintiff will be put to the necessity of bringing a multiplicity of actions to protect her rights. This allegation, construed in connection with the relief prayed, is insufficient to make a case in equity unless it can be maintained on some other ground.

It is urged, however, that the action is brought to recover an easement only, and that ejectment will not lie where such recovery is sought, and that the plaintiff has no adequate remedy at law. It is clear that a mere action for trespass would not furnish an adequate and complete remedy, and, if it be true that the complaint does not state the necessary facts to constitute a cause of action in ejectment, the plaintiff has planted her suit in the proper forum. Section 3074, St. 1898, prohibits recovery by ejectment unless the plaintiff at the time of commencing the action has a valid, subsisting interest in the premises claimed, and a right to recover the same or the possession thereof, or of some share or interest in a portion thereof to be proved and established in the action. Section 3077, St. 1898, provides that the complaint in an action of ejectment shall set forth that the plaintiff has an estate or interest in the premises claimed, and shall state the nature and extent of such interest, whether in fee, dower, for life, or for a term of years, and that he is entitled to the possession of such premises, and that defendant unlawfully withholds the possession thereof from him. Section 3075, St. 1898,...