Church v. Joint School District No. 12

55 Wis. 399 | Wis. | 1882

ORtoh, J.

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 ora terms, 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 bo sustained on no other ground, and that is, that school districts have the right by statute (E. S., secs. 477 et seq.J, 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. Norton v. Peck, 3 Wis., 714. Then it was applied by analogy to the threatened taking of land by a railroad company for the use of its road. Shepardson v. M. & B. Railroad Co., 6 Wis., 605, and again applied in Powers v. Bears, 12 Wis., 214, and lastly in Diedrichs v. N. W. U. Railway Co., 33 Wis., 219. In this last case the complaint was held substantially defective, on demurrer, because it was not averred that the defendant threatened to take possession of the plaintiff’s land without first having paid or tendered ;the compensation therefor. This complaint does not in limited terms contain this averment, and this point is also raised and urged on this demurrer.

The learned counsel of the appellant invokes the rule that the complaint should receive a more liberal construction in this respect, and a greater latitude of presumption should be. indulged in where the point is first raised at the trial on demurrer ore tenus, than if the complaint had been formally demurred to at the usual time, and the case he cites of Potter v. Taggart, 54 Wis., 395, is certainly a very strong case for the application of this rule. But we think it no- great stretch of liberality of construction, or very violent presumption, to construe the allegation in this complaint that the defendant threatens to take possession of the plaintiff’s land “ without first having acquired any right or title thereto, or any leave or license to enter upon the same,” as substantially stating that the defendant threatens to take said land without first having paid, tendered, or deposited the compensation therefor, as required by the statute, as a condition precedent to acquiring anvy right or title thereto. If the complaint had stated that the defendant threatens to take said land without first having acquired any right or title thereto I>y paying, tendering, or depositing the compensation therefor, the learned counsel of the respondent would not be likely to complain of any defect, in this respect, for this is one method only of acquiring the right and title thereto. If the defendant had so paid, tendered, or deposited- the compensation therefor, it had acquired the right and title thereto, otherwise not. So that the allegation of-the complaint is the broader, and includes that which it is asserted is not made in terms. It is the broader because it embraces a negative of all methods by which the defendant could acquire any right or title to the land of the plaintiff, including this statutory method. If the complaint ought to negatme all right of the defendant to enter and appropriate the land in question, then the allegation should be broad énough to embrace pwehase cmd gift as well as condemnation, and the payment, tender, or deposit of the compensation ascertained according to the statute; and if it did not, it might have been liable to demurrer on that account. The demurrer should have been overruled, and the motion to dismiss'the complaint denied.

By the Oourt.— The judgment of the circuit court is reversed, and the cause renianded for further proceedings according to law.