24 Wis. 572 | Wis. | 1869
Technically speaking, we think the amendment of the complaint had not been perfected. We do not understand that an amended complaint was served within twenty days after answer, but merely that the amendment was served upon the opposite attorney, with a notice that the original complaint had been so amended.
Now, we think, either the proposed amendment should have been also inserted in the original complaint on file, by leave of court, or the amendment at least should have been filed, so that the papers on file would show what the amended pleadings were. This, it appears to us, was necessary in order to perfect the amendment of the complaint. Upon the trial, the court held that the complaint had not been amended, and, further, that, if it had been amended as claimed, still no evidence would be admissible to prove the matters therein stated; and it dismissed the complaint. So it is obvious that the circuit court, in effect, ruled that even the amended complaint was defective, for the reason that it did not show that the plaintiff was entitled to an injunction to prevent the commission of the acts therein alleged to be threatened and likely to ensue.
Is this view of the amended complaint correct? We think not. The complaint states that the plaintiff is the owner of certain premises therein described, and that, for more than ten years last past, he has had the exclusive right, under an act of the legislature, of keeping up and running a ferry across the Wisconsin river from his said premises, and charging ferriage; that, to maintain his ferry, it is necessary to keep a rope or cable extended across the river, which is navigable, and that the cable has to be suspended sufficiently high to permit river steamers to pass under it, and to that end it becomes necessary to fasten the cable back some eight to twelve rods from the river, on the west side thereof, on his premises; that, in consequence of the rise and fall of
In the first place, assuming the allegations of the complaint to be true, as it is evident we must do upon this appeal, we think that the statute does not authorize the supervisors to lay out a highway over the grounds in question. Our statute provides that no public or private road shall be laid out through any fixtures or erections used for the purposes of trade, nor through any yards or inclosures necessary to the use and enjoyment of such fixtures ór erections, without the consent of the owner. Laws of 1866, ch. 137. Now the plaintiff distinctly alleges that he has, at considerable expense, constructed a dock near the landing of his ferry-boats, which was erected and designed for the purposes of trade with river boats, and for landing and piling lumber upon, as well as for the protection and use of his ferryboats. We suppose this structure is a “fixture,” or “ erection,” within the meaning of the statute ; and the complaint further shows that the river banks and adjacent grounds are used in connection with the dock for a wood and lumber yard: So that'it appears that not only the beneficial use and enjoyment of the ferry privilege would be seriously invaded by the proposed highway, but that also the supervisors were proceeding to lay it out through grounds where they have no right to lay it without the consent of the owner. That, to prevent such an injury, a suit for an injunction will lie, is a principle fully established by the following authorities: The Albany Northern R. R. Co. v. Brownell, 24 N. Y. 345; The Mohawk and Hudson R. R. Co. v. Artoher, 6 Paige, 83; Willards’ Eq. Jur. 392, 393. It is true, the complaint does not state that the yard appropriated for the piling of wood and lumber is inclosed by fences; nor do we suppose it is necessary that it should be, in order to be protected by the statute. But it is alleged
By the Court. — The judgment of the circuit court is reversed, and the cause remanded for further proceedings.