70 Wis. 476 | Wis. | 1888
It is urged by the learned counsel for the appellant that the order should not have been made. We think the complaint states facts sufficient to show that the plaintiff has fair grounds for claiming that he has the right
The rule in such cases as to granting or not granting; the preliminary injunction is laid down in Kerr on Injunctions, in the following language: “The court will not interfere by way of mandatory injunction without taking into consideration the comparative convenience and inconvenience which the granting or withholding the injunction would cause the parties.” Gould, in his work on Waters, §: 525, says: “If a temporary injunction would cause serious clam-age to the defendant in case the plaintiff should fail to establish his right, and would not materially benefit the plaintiff if successful, it will be withheld until after the hearing; but if, assuming the facts alleged to be true, more harm would be caused to the plaintiff by withholding the order than in the event of his failure would be caused to the defendant by granting it, it will be granted.” Justice Miller, in the case of U. S. v. Duluth, 1 Dill. 469, 414, says: “ In this emergency I am relieved by a principle which has generally governed me, and which, I believe, governs nearljr all judges, in applications for preliminary injunctions. It
The case at bar is not wholly unlike the case of Sheldon v. Rockwell, 9 Wis. 166. In that case it was held that, when the plaintiff had encouraged the defendant to expend his time and means in constructing a dam and mills, the court will not grant an injunction to restrain the rebuilding of the dam which had gone off by a flood. In the case at bar the defendant destroyed the dam after it had been maintained for nearly forty years, and seeks to prevent the plaintiff from rebuilding the same.
In the case of Shrewsbury & C. R. Co. v. S. & B. R. Co. 1 Sim. (N. S.), 410, 432, the learned vice-chancellor says: “ I am perfectly satisfied of the authority of this court to issue an injunction, not merely to restrain the parties from doing acts, but also from entering into contracts pending the litigation that may embarrass the plaintiff in his suit, and that the court is entitled to do so whenever it sees there is a fair ground for litigation raised by the plaintiff ; yet that right of the court must be guided by a discretion not to exercise it when it sees that on the balance of convenience and inconvenience between interim interference and noninterference the balance greatly preponderates in favor of the defendant and against the plaintiff. Now, here, the injury to the plaintiffs in comparison with the injury to the defendants is extremely small,” etc., and in that case the injunction was refused. In the same case it was said: “The first point on which the court has to be satisfied is not, as Lord CottekhaM says, positively that the plaintiff is right, but that he has a fair question to raise. But I do not understand Lord CottenhaM as meaning to say that in every case
In High on Injunctions, the learned author says: “When the legal right is not sufficiently clear to enable a court of equity to form an opinion, it will generally be governed in deciding an application for a preliminary injunction by considerations of the relative convenience and inconvenience which may result to the parties from granting or withholding the writ. And when, on balancing such considerations, it is apparent that the act complained of is likely to result in irreparable injury to the complainant, and the balance of inconvenience preponderates in his favor, the injunction will be granted.” 1 High, Inj. sec. 13. See, also, secs. 937, 939, 941. The same rule is laid down in Ingraham v. Dunnell, 5 Met. 118; Wason v. Sanborn, 45 N. H. 169; Wilcox v. Wheeler, 47 N. H. 488; Hough v. Doylestown, 4 Brewst. 333, 447. See, also, sec. 524, Gould on Waters, and cases cited in note 1.
The rule of the authorities above cited fully justifies the court in granting the preliminary injunction in the case at bar. It is virtually admitted that the dam in question had been maintained for nearly forty years; that durmg all that time the water-power created by it had been used by the proprietors on the oast side of the river, and large sums of money had been expended by the plaintiff and those
By the Court.— The ortler of the circuit court is affirmed, and the cause is remanded for further proceedings.