City of Milwaukee v. Bros
| Decision Date | 04 December 1906 |
| Citation | 130 Wis. 31,110 N.W. 7 |
| Parties | CITY OF MILWAUKEE v. GIMBEL BROS. ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.
Suit by city of Milwaukee against Gimbel Bros. and others. From an order continuing a restraining order pendente lite, defendants appeal. Affirmed.
Within the city of Milwaukee, Grand avenue, running east and west, reaches the Milwaukee river on its west bank. The defendants Gimbel Bros. occupied, under lease, a parcel of land on the south side of Grand avenue, bounded on the east by the Milwaukee river, and on the west by West Water street, upon which, in 1906, there stood a building extending from West Water street eastward. As early as 1863 the city of Milwaukee had enacted an ordinance establishing a permanent dock line on the west shore of the Milwaukee river, which, on Grand avenue, was 157 feet east of the east line on West Water street, which ordinance is still in force, if valid. The east line of defendants Gimbel Bros.' building was some five feet west of this established dock line. Prior to 1863, piles had been driven so as to form a structure or dock platform, extending some 11 feet still further east than the established dock line, which structure had never been interfered with by the public authorities, either federal, state, or municipal. Neither of these lines are shown to have had any relation to the actual shore or bank of the river in a state of nature. Defendants Gimbel Bros. had prepared plans, and were proceeding to erect a building as an addition to the existing one, extending substantially to the line of the existing dock, and approximately 11 feet beyond the established dock line. The charter of the city of Milwaukee empowered the common council to establish dock lines and “to restrain and prevent incroachments upon said rivers and canals and obstructions thereto.” This action was commenced to enjoin the defendants Gimbel Bros. from proceeding with the erection of the proposed building, and from driving piles and placing obstructions in the river to the east of the established dock line, and to require them to remove and take away piles, and all other obstructions already placed by them. The other defendants than Gimbel Bros. were the several contractors who had been employed by them to do the work, and some of whom had already driven piles eastward of the established dock line. Upon the verified complaint a temporary restraining order was made, ex parte, against further driving of piles and placing obstructions or doing any other work east of the established dock line, which was accompanied by an order to show cause why such restraint should not be made permanent during the pendency of the action. This was opposed upon verified answer and affidavits, asserting that the old dock had been located with the consent and acquiescence of the city, and that all land west of it had been occupied adversely, notoriously, and exclusively by Gimbel Bros. and their predecessors in title since prior to 1863, and denying that any such space had ever been navigable water or used as such, and they alleged that they had no purpose to drive any piles or do any work to the east of the existing dock structure. Upon this showing, the court made order continuing the restraint pending the action, from which order all the defendants appeal.
The following is a plat showing the location in controversy:
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Winkler, Flanders, Smith, Bottum & Fawsett, for appellants.
John T. Kelly, City Atty., and Benjamin Poss, Asst. City Atty., for respondent.
DODGE, J. (after stating the facts).
In this case the trial court has exercised its discretion to maintain the present status quo until the various issues of fact and law can be duly considered and decided. Were this not done, the damage to result from an effective removal of all claimed obstructions in Milwaukee river east of the established dock line would be vastly greater than any caused by temporary restraint of the construction of a business building, as alleged to be threatened, and the result sought by the action, namely, preventing obstruction of navigation, would be rendered...
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