De Pauw v. Oxley

• Decision Date: 18 October 1904
• Citation: 100 N.W. 1028,122 Wis. 656
• Parties: DE PAUW v. OXLEY.
• Court: Wisconsin Supreme Court

122 Wis. 656

100 N.W. 1028

DE PAUW

v.OXLEY.

Supreme Court of Wisconsin.

Oct. 18, 1904.

Appeal from Circuit Court, Vilas County; W. C. Silverthorn, Judge.

Suit by Newland T. De Pauw against John Oxley. From an order dismissing a temporary injunction, plaintiff appeals. Reversed.

Appeal from order dated May 26, 1904, vacating temporary injunction entered by the judge ex parte upon the complaint alone. That instrument alleges ownership by plaintiff of a considerable tract of land in Vilas county, Wis., having a boundary upon a certain lake alleged to be picturesque and beautiful, upon which premises, and approximately 50 feet from the lake, plaintiff had constructed a summer home for himself and family, with various buildings necessary to their use and comfort, and had cleared and improved a part of said land, fenced the same, all to fit them for a summer home, at large expense, and that he and family occupied them for such purpose; that the defendant, without license, authority, or claim of right, had repeatedly trespassed and entered with teams and vehicles and in divers other ways on said premises, destroying fences and timber, and otherwise greatly injuring and disturbing said premises for the purposes for which plaintiff held the same; among other things, by tearing up the ground between the house and the lake, which served as a dooryard for said premises, thereby greatly interfering with the comfort and enjoyment of said premises by plaintiff and his family; at least nine such trespasses being set out in detail during September, October, and November, 1903. That although plaintiff had made vigorous protest, and given warning to the defendant, still he continued such trespasses, and threatened to repeat the same, and especially to drive across the dooryard of the plaintiff between the cottages and the lake. That by the trespasses so committed large damages had been suffered, and by repetition thereof the premises would be rendered unfit and useless for plaintiff's said purpose; and that no adequate remedy at law existed; praying permanent injunction against further trespasses on said land, and an award of damages for those already committed, and for general relief. At the time of the order appealed from, no pleadings had been served by defendant, and no affidavits were presented on either side.

Colman & Colman, D. E. Riordan, and Michael S. Bright, for appellant.

John Barnes, for respondent.

DODGE, J. (after stating the facts).

We are somewhat at a loss for the reasons which induced the trial court to vacate the injunction pendente lite in this case, where, as will be pointed out later, the considerations moving the discretion of the court toward maintenance of such restraint are so strong. We are well-nigh forced to the conclusion that he must have yielded acquiescence to the contention of respondent's counsel that the complaint fails to state a cause of action, so that there was no field for discretion, but the duty rested on the court to deny temporary restraint pending an action in which no relief could finally be granted plaintiff. Such view, if it was entertained, was clearly erroneous. The sufficiency of a complaint alleging threatened and imminent repeated trespasses on real estate was sufficiently discussed and decided in Miller v. Hoeschler (Wis.) 99 N. W. 228, so that we need add nothing. The first of the reasons stated for interposition of equity, namely, the irreparable character of the injury, is especially applicable to premises owned as a residence--a place to live and enjoy the quiet, rest, and comfort of the home--for there the...