Church v. Joint Sch.-Dist. No. 12
| Decision Date | 09 September 1882 |
| Citation | 55 Wis. 399,13 N.W. 272 |
| Parties | CHURCH v. JOINT SCHOOL-DISTRICT NO. 12. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Milwaukee county.
Frisby & Weil, for appellant.
Finches, Lynde & Miller, for respondent.
The complaint substantially charges that the school board of said district and its contractor are about to enter upon and appropriate and permanently occupy the land of the plaintiff for the purpose of building and constructing thereon a school-house, and its necessary appurtenances, for the use of said district, and the said board, or a majority thereof, threatens to do so without first having acquired any right or title to said land, or any leave or license to enter upon the same for such purpose, to the permanent and perpetual damage of the plaintiff. A perpetual injunction is prayed, and a preliminary injunction was granted, and an issue of fact made by answer for trial. The defendant, at the trial, on demurrer ore tenus, moved that the complaint be dismissed, and the motion was granted. This complaint for equitable relief can be sustained on one ground, and that ground has been sanctioned by this court in several analogous cases,--and perhaps, and quite likely, it can be sustained on no other ground,--and that is that school-districts have the right by statute (section 477, et seq.) to institute proceedings of condemnation of the lands of private owners for school-house sites; and this could have been done in this instance if the plaintiff had refused to sell or lease his said land for such purpose, and the defendant school-district threatens to take and appropriate such land to such public use without first paying, tendering, or depositing the compensation therefor. The principle of these cases is “that an attempt to enter upon and take permanent possession of land for public use without the assent of the owner, and without the damages having been ascertained and paid or tendered, is, or would be, if consummated, in the nature of an irreparable injury, for the prevention of which the writ of injunction constitutes the proper remedy.” This principle was first applied in a case closely analogous to this, in which a town threatened to take land for the purposes of a highway. Newton v. Peck, 3 Wis. 714. Then it was applied by analogy to the threatened taking of the land by a railroad company for the use of its road. Shepardson v. M. & B. R. Co. 6 Wis. 605, and again applied in Powers v. Bears, 30 Wis. 219, and lastly in Diedrichs v. N. W. U. Ry. Co. 33 Wis. 219. In...
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Randall v. City of Milwaukee
...37 L. Ed. 155. The Wisconsin cases which have been cited by counsel are not in point. Only in two of them, viz., Church v. Joint School Dist., 55 Wis. 399, 13 N. W. 272, and Metropolitan Investment Co. v. Milwaukee, 165 Wis. 216, 161 N. W. 785, were public corporations involved, and in each......
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McCord v. E. Ry. Co. of Minn.
...434;Powers et al. v. Bears et al., 12 Wis. 214, 78 Am. Dec. 733;Diedrichs v. Northwestern U. R. Co., 33 Wis. 219;Church v. Joint School Dist., etc., 55 Wis. 399, 13 N. W. 272;Valley I. W. M. Co. v. Goodrick, 103 Wis. 436, 78 N. W. 1096. Nor do we think chapter 454, p. 1086, Laws 1907, or th......
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