Brock v. Dole

• Decision Date: 15 May 1886
• Citation: 28 N.W. 334,66 Wis. 142
• Parties: BROCK v. DOLE.
• Court: Wisconsin Supreme Court

66 Wis. 142

28 N.W. 334

BROCK

v.DOLE.

Supreme Court of Wisconsin.

May 15, 1886.

Appeal from circuit court, Clark county.

TAYLOR, J., dissents.

James O'Neill, for appellant, Catharine A. Brock.

R. J. MacBride, for respondent, F. A. Dole.

COLE, C. J.

The learned counsel for the defendant insists that the injunctional order of November 9th was superseded or abrogated by the subsequent order of November 13th; therefore this appeal should be dismissed because the order is not appealable. By the order of November 9th the circuit court modified the injunctional order granted by the court commissioner so as to permit the defendant to have access to and use of the chimney between the barber-shop and the room occupied by him; and this order further provided, in case the plaintiff did not, or would not, permit the defendant to use the chimney on request, then the injunctional order be, and the same was, dissolved. It appears that the day following the making of this order a personal request was made of the plaintiff to permit the defendant to use the chimney, which request was refused. On proof of this fact being made, the order of November 13th was entered unconditionally, dissolving the injunction granted by the court commissioner. But as soon as the plaintiff refused to assent to the condition upon which the injunction was to be continued, such injunction fell by its very terms. The subsequent order performed no other office than to furnish record evidence of an extrinsic fact that a request had been made and refused; in other words, that the injunction was dissolved. It did not, and of course could not, dissolve an injunction which was no longer in force. The appeal in this case was from the order of November 9th, and was perfected November 12th, after this conditional order had become absolute, and the injunction dissolved. So it is really an appeal from an order which dissolves an injunction, and must be so considered. In that view, there can be no question as to its appealability.

On the merits, we are of the opinion that the injunction should have been continued. It is claimed by the defendant that he is rightfully in possession of a certain building as tenant of the plaintiff. It appears there was a dispute and litigation between the parties as to when the tenancy expired. Two actions for unlawful detainer had been commenced by the plaintiff, which were pending on appeal when this suit was instituted. The defendant had for three years or more occupied a store-room in a one-story frame building, which was owned by the plaintiff, adjoining a room occupied as a barber-shop. There was a chimney on the west side of the barber-shop adjoining the room occupied by the defendant. A hole had been cut from the room occupied by defendant, and a thimble put into the chimney, so that, by means of a stovepipe attached to the chimney, the defendant had warmed his room with a stove. In the summer of 1885 this chimney was condemned by the authorities as unsafe and dangerous, and was taken down by the plaintiff. Another was rebuilt, but was so constructed as not to connect with the defendant's room. He claims that the plaintiff, to prevent him from using it, had placed a piece of sheet-iron on the side of the chimney next to his partition. In October the defendant commenced the erection of a chimney upon the inside of his room, cut a hole through the ceiling, and was about cutting a hole through the roof, when the injunction was obtained restraining him from proceeding with the work. There had never been a chimney where the defendant proposed to build one, and the plaintiff did not desire any there. She claimed that the proposed chimney, if erected, would greatly damage the building, sink the floor, etc.

The contention of the plaintiff is that a tenant, whether rightfully in possession or not, cannot, without the consent of the landlord, make material changes or alterations in a building to suit his taste or convenience, and, if he does, it is waste. The law is undoubtedly so settled. “Any material change in the nature and character of the buildings made by the tenant is waste, although the value of the property should be enhanced by the alteration.” Kidd v. Dennison, 6 Barb. 13;Douglass v. Wiggins, 1 Johns. Ch. 435; Story, Eq. Jur. § 913; Will. Eq. Jur. 373. In Jackson v. Andrew, 18 Johns. 434, the court say “that a tenant cannot, under the pretense of advantage to the reversioner, change the nature of the buildings; and many cases show that such changes, though beneficial, would be waste.” “The ground on which alterations in demised premises, not prejudicial to the value of the property, have been declared waste, is that they change the identity of the estate.” Will. Eq. Jur. supra. “If a tenant makes any essential change in a dwelling, he is liable in waste. Thus, if he takes down a partition, and makes two rooms into one, or if he sets up a permanent partition, and makes one room into two, it is waste.” Wood, Landl. & Ten. 704. “A landlord need not wait until waste is actually committed; for if he ascertains that the tenant is about to commit any act which would operate as a permanent injury to the estate, the court will interfere, and restrain him from doing such act; and whether he begins or threatens or shows an intention to commit waste, an injunction will be granted.” Tayl. Landl. & Ten. § 691; Poertner v. Russel, 33 Wis. 193.

It is said that an injunction will not lie to restrain a mere naked trespass, unless the act complained of operates such irreparable mischief that it is not susceptible of compensation in damages by an action at law. The general correctness of this proposition may be admitted, though it has its exceptions. But the commission of waste by the tenant upon the demised building is held to be a good ground for an injunction. 1 High, Inj. § 434.

It appears that the defendant, on the rendition of the judgment against him by default in the second unlawful detainer suit, immediately appealed to the circuit court, and gave the undertaking prescribed by section 3368, Rev. St. It is said the giving of such an undertaking secured to the defendant the right to remain in possession until the appeal was determined. Section 3369. But still the defendant had no right, while he thus remained in possession, to make any material alterations or changes in the building, as he attempted to do.

For these reasons we think the injunction granted by the commissioner should have been continued in force without modification....