Nicolai v. Town of Vernon

• Decision Date: 13 November 1894
• Citation: Nicolai v. Town of Vernon, 88 Wis. 551, 60 N.W. 999 (Wis. 1894)
• Parties: NICOLAI v. TOWN OF VERNON ET AL.
• Court: Wisconsin Supreme Court

88 Wis. 551

60 N.W. 999

NICOLAI

v.TOWN OF VERNON ET AL.

Supreme Court of Wisconsin.

Nov. 13, 1894.

Appeal from circuit court, Waukesha county; A. Scott Sloan, Judge.

Action by Henry E. Nicolai against the town of Vernon, impleaded with Mark Davis and others, to restrain defendants from removing plaintiff's fences, and from taking a strip of his land for a highway.From an order sustaining a demurrer to the complaint, plaintiff appeals.Reversed.

This is an action in equity to prevent the threatened removal of plaintiff's fences, and the taking of a strip of his land for highway purposes.The complaint alleges, substantially, plaintiff's ownership of 200 acres of land in the respondent town, bordering on a certain highway, and alleges that the defendant town and the other defendants, who are alleged to be the supervisors and path master of the town, threaten and are about to enter on plaintiff's premises, and remove his fence along said highway, and to unlawfully appropriate and use for highway purposes a long strip of plaintiff's land adjoining said existing highway, and that no legal proceedings have been had for the change or alteration of the line of said highway.Irreparable injury is alleged, and a perpetual injunction is prayed for against all the defendants, preventing such threatened acts.The town of Vernon demurred to the complaint generally, and on the ground that there is a defect of partiesdefendant.From an order sustaining this demurrer, the plaintiff appealed.Lindley Collins, for appellant.

Ryan & Merton, for respondents.

WINSLOW, J.(after stating the facts).

The only reasonable construction...