161 Wis. 489 | Wis. | 1915
When this action was begun the plaintiffs lease still bad substantially eight years to run. Plaintiff also had an option to purchase during the life of the lease, which had not been taken advantage of up to the time the action was tried. The court found that the value or usefulness of the plaintiff’s interest in the premises described in the complaint had not been materially diminished or affected by the vacation or closing of the westerly 150 feet of the east and west alley. The court also found that the plaintiff was occupying the east half of the north half of the north and south alley which was vacated or attempted to be vacated under the provisions of ch. 134 of the Laws of 1887, and also a portion of the north five feet of the east half of the east and west alley, which was vacated at the same time and by virtue of the same authority. It was contended by plaintiff on the trial and it is contended in this court that this act of the legislature was void. The trial court was of the opinion that if plaintiff was hampered in the matter of ingress to or egress from the rear of the leased premises it was itself as responsible for its situation in this regard ••as were the defendants. It'was further found that the defendants in good faith relied upon the validity of the vacation proceedings before the common council of the city of Milwau-ikee. It appeared from the evidence that the basement of the new building had been excavated and that the building had at least been partially constructed over the alley before the action was begun, and that no preliminary injunction was sought.
As conclusions of law the court found that the act of the legislature in 1887 was unconstitutional and void, as were all the proceedings taken under it to vacate the portions of the alley that were attempted to be vacated, and that to allow the plaintiff to maintain the action would be contrary to the rules and practice of equity, and the complaint was dismissed for want of equity. The court also held that the vacation proceedings carried on by the common council of the city of Mil-
Numerous questions are discussed in tbe elaborate briefs-wbicb bave been filed in tbe case. Some of these questions are important, and there is a wide divergence of authority as-to what tbe law is. Whether tbe plaintiff bad a special property right in tbe alley not common to tbe general public, whether, if sucb right existed, it could be condemned, whether, if it could be condemned, tbe statute under wbicb tbe proceedings were carried on was valid, and whether, if valid, tbe city charter was not violated in essential particulars in carrying on tbe proceedings, are questions wbicb we do not feel called', upon presently to decide, having reached tbe conclusion tbat tbe finding tbat plaintiff suffered no substantial damage is sustained by tbe evidence, and having-reached tbe further conclusion tbat under tbe facts of tbe case it was within tbe sound: discretion of tbe court to refuse relief by way of mandatory-injunction.
We may for tbe purposes of this appeal assume, without deciding, tbat plaintiff would bave a standing in court bad it-made a showing of substantial injury. Considerable evidence was offered pro and con on this issue. It would serve-no useful purpose to discuss this evidence in detail, and we-pass it with tbe remark tbat tbe finding of fact made is not against tbe clear preponderance of tbe testimony.
A lessee has a right to protect bis leasehold interest against unlawful interference therewith. However, tbe plaintiff hardly stands in tbe same position before tbe court as would tbe owner. Tbe owner, looking into tbe future and anticipating a change in conditions, might bave serious objections to tbe closing of an alley adjacent to bis premises for wbicb be bad no immediate use, where a lessee would bave no cause for complaint, provided bis needs or conveniences did not re-
While the power to issue mandatory injunctions is vested in courts of equity, it is a power which is sparingly used. High, Injunctions, § 2. The granting of an injunction rests in the sound discretion of the court. Kulinski v. Dambrowski, 29 Wis. 109, 115. The power itself being great, a high degree of judgment is required in order to use it wisely and never to abuse it. State ex rel. Superior v. Duluth St. R. Co. 153 Wis. 650, 654, 142 N. W. 184. While equity will restrain a private nuisance, relief will not be granted in every instance of alleged nuisance. The present or threatened injury must be real and not trifling, transient, or temporary. 4 Pom. Eq. Tur. (3d ed.) § 1350. Most American courts adopt the view that in cases involving the right to the use of easements, substantial damage is necessary to support an injunction. 6 Pom. Eq. Jur. § 548. Ordinarily where an injunction will cause great injury to,tibe defendant and will confer little or no benefit in comparison upon the plaintiff, it is within the discretion of the court to refuse it. Brande v. Grace, 154 Mass. 210, 31 N. E. 633; 22 Cyc. 782 and cases cited. Equity should not be successfully invoked merely to
The case of Tilly v. Mitchell & L. Co. 121 Wis. 1, 98 N. W. 969, is perhaps relied on more -strongly than any other case cited on this branch of the case by the appellant. There, however, the plaintiff’s damages were held to he substantial. This was also the case in Schuster v. Milwaukee E. R. & L. Co. 142 Wis. 578, 126 N. W. 26.
We conclude that it was within the sound discretion of the trial court to refuse the injunction prayed for.
By the Oourt. — Judgment affirmed.
