14 Wis. 443 | Wis. | 1861
By the Court,
This action was brought to enjoin the defendants from running their cars across the plaintiff’s land, upon the ground that no compensation has been made for the land. The counsel for the appellants contended that the decision of this court in the case of Davis vs. The La Crosse & Milwaukee R. R. Co., 12 Wis., 16, should be overruled, and that no injunction should be granted to restrain a railroad company from running their cars over any land upon which they had built their track, until it appeared that the compensation for the land had been legally ascertained. It was said that either party, the owner of the land as well as the company, could move in that matter and have
But we have come to the conclusion that independently of the effect of this statute and of the decision in the Davis case, there were good grounds for denying the injunction in this case. We think a decided preponderance of the evidence shows that the company altered the location of its road and ran the track where it now is upon the plaintiff’s land, at his instigation and upon his promise to give them the right of way. This being so, it is a good answer to his application for an injunction, whether his promise was made in such form as to be binding upon him in law or not His counsel argued the case upon the theory that if such promise was void under the statute of frauds, then it could have no weight in determining the plaintiff’s right to an injunction. But this by no means followa Such a conclusion would be entirely repugnant to all the reasoning upon which a part performance of a parol contract for the sale of lands, which is void under the statute of frauds, is held to take the case out of the statute. In such cases courts of equity not only refuse to interfere in behalf of the party who seeks to rely on the statute, but actually interfere against him, and compel him
It is undoubtedly true that considerable inconvenience might result from granting such an injunction. And although we do not consider that as a sufficient ground for denying it, where the party has not unreasonably acquiesced in, and did not originally invite the act of which he complains, yet where either of these facts did exist, the inconvenience resulting from an injunction adds great force to the reasons for its refusal. When the owner stands upon his legal rights, it is for the company to take the necessary steps to acquire the right of running over his land. And perhaps his mere inaction for a time should not be too strongly con-
The court below properly refused to go into the question as to the amount of compensation. The mode prescribed by the charter is the only way of arriving at that.
But for the reasons already stated, the judgment of the circuit courtis reversed, with costs.