Marshfield Land & Lumber Co. v. John Week Lumber Co.

• Decision Date: 07 December 1900
• Citation: 108 Wis. 268,84 N.W. 434
• Court: Wisconsin Supreme Court
• Parties: MARSHFIELD LAND & LUMBER CO. v. JOHN WEEK LUMBER CO., LIMITED.

108 Wis. 268

84 N.W. 434

MARSHFIELD LAND & LUMBER CO.

v.JOHN WEEK LUMBER CO., LIMITED.

Supreme Court of Wisconsin.

Dec. 7, 1900.

Appeal from circuit court, Taylor county; John K. Parish, Judge.

Suit by the Marshfield Land & Lumber Company against the John Week Lumber Company, Limited. From orders vacating a preliminary injunction and granting an injunction to defendant, plaintiff appeals. Reversed.

This action was commenced February 21, 1900, to restrain the defendant from entering upon, cutting timber from, crossing over, hauling or banking logs on, or using or injuring, certain premises of the plaintiff. The complaint sets out that the defendant, without its consent, had theretofore entered upon certain premises of the plaintiff with a large number of men and teams, and had proceeded to remove and destroy timber, built logging roads, and had hauled over and banked thereon large quantities of sawlogs, and was continuing such trespasses, and causing irreparable injury thereto, for which plaintiff had no adequate remedy at law, and which it feared might ripen into an easement. Upon the complaint, duly verified, a court commissioner of Taylor county issued an order restraining the defendant, its officers, agents, and employés, from entering upon said premises, from hauling logs over the lands, from cutting any trees thereon, and from building or using any roads thereon, until the further order of the court. The complaint and order were duly served. On February 23d, the defendant prepared an answer in which it is alleged that defendant's business was logging and lumbering; that it owned certain lands in the neighborhood of plaintiff's lands; that at the time it purchased said lands there was a public road or highway extending from Rib river across plaintiff's lands to a point on defendant's property, and thence to a public highway. Upon information and belief, that said road had first been used for travel more than 20 years ago, and had been used in hauling logs, hay, and supplies from the river by lumbermen and by the public generally; that commencing on December 1, 1899, the defendant had used said road in traveling back and forth from the river to its said lands, and had made some improvements thereon, blasting stumps and leveling knolls, and denied that it had cut any trees; that said road had been used and improved by those desiring to use it with consent of the owners for more than 20 years, and a prescriptive right to its use was claimed. It was also alleged that the acts complained of were a benefit to the property, and not an injury, and that plaintiff had an adequate remedy at law. The defendant set up the same facts as a counterclaim, with the further allegations that defendant had about 200,000 feet of logs yet to be hauled, and that there was no other way to get them out except over this road, and, if it was prevented from getting them out, they would be a complete loss; that defendant had 30 men and 12 teams doing nothing, and would be obliged to take them out of the woods unless they could put in said logs. There were also allegations that plaintiff was not acting in good faith, but was attempting to extort from defendant a large sum of money for the use of said road; that defendant had offered to give a bond to pay all damages, and was willing to pay for all injuries to said property. Upon this answer, accompanied with several affidavits setting out other facts not material to this litigation, the defendant, on February 23, 1900, obtained from the court an order to show cause, returnable at Ashland on March 2d, why an injunctional order should not be made, restraining the plaintiff from molesting the defendant or its employés in hauling logs over this road. The order also provided that in the meantime the plaintiff should be so restrained, and said order made by the court commissioner on February 21, 1900, at the request of plaintiff, was vacated and set aside. On March 6th the court made an order, based upon the answer, the affidavits used on the hearing, and upon the record, restraining the plaintiff, until the further order of the court, from obstructing said road, or in any manner interfering with or molesting the defendant or its employés in the use thereof. Upon this hearing a large number of affidavits were used, on the one side tending to show that the road in question was a mere private logging road, so overgrown with underbrush as to have been impassable by teams when the defendant entered upon the land; that it had only been used casually by an occasional logger for some little time after it had been first cut out, and not at all during later years; that the road had never been laid out or adopted in any way by the town authorities; that the defendant had made application to the town authorities to lay out a temporary logging road over the same route; and in the application therefor, duly verified, it was alleged that said road did not...