108 Wis. 268 | Wis. | 1900
We will first consider the appeal from that portion of the order of February 23, 1900, which dissolved the injunction granted in plaintiff’s favor by the court commissioner. This order was made by the court upon application of the defendant, and without notice to plaintiff. Sec. 2781, Stats. 1898, says: “If the injunction be granted by a judge without notice the other party, at any time before trial, may apply, upon noUce, to the court, or to the presiding judge thereof, in which the action is brought to vacate or modify the same.” Another section provides that, “An order made out of court, without notice, may be vacated or modified without notice by the judge who made it; or upon motion, after notice, by such judge or by the court, but not otherwise.” Sec. 2814, In view of these plain statutory provisions, it is impossible to justify the action of the court above referred to. Sufficient facts were stated in the complaint to give the court commissioner at least a colorable right to make the order restraining the defendant from committing the repeated trespasses upon the plaintiff’s land, as alleged. No matter
The order of March 6th was based upon the counterclaim in defendant’s answer and certain affidavits, referred to in the statement. The remaining question is whether there was a sufficient showing made to authorize the court in restraining the plaintiff from obstructing the road or molesting the defendant in its use. When we come to consider all the facts that were before the court, the conclusion is certain that plaintiff was the owner of the premises in question ; and, while there is an attempt in the answer to put that fact in issue, the subsequent allegations and the proof produced on the hearing are sufficient to set that matter at rest as stated. The only ground upon which the defendant sought to justify its use of the road was that it had become a highway by prescriptive use. An attempt to set out such use was made in the answer, but the affidavits used on the hearing overwhelmingly show that this contention was unfounded. The most that appears is that a logging road had been made there in the early 70’s, which had been used at
An attack is made upon the complaint as not stating facts sufficient to warrant the interference of equity in plaintiff’s behalf. On this question we express no opinion. If it be admitted that it is infirm in this regard, it adds nothing to the defendant’s counterclaim, neither does it justify the court in an arbitrary dissolution of the injunction based upon it. The statute referred to provided a reasonable rule of practice which should have been followed.
Our conclusion is that that portion of the order of February 23, 1900, appealed from, should be reversed, and the order of March 6, 1900, should also be reversed.
By the Cov/rt.— The orders are reversed as stated in the opinion, and the cause is remanded for further proceedings according to law.