Pioneer Wood-Pulp Co. v. Bensley, 70 Wis. 476

Pioneer Wood-Pulp Co. v. Bensley

70 Wis. 476 | Wis. | 1888

Taylor, J.

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 *481to maintain the dam in the place where it has been maintained for more than twenty years before it was destroyed bty the defendant, upon two grounds, viz.: Firsts under the grant of the legislature of 1847, as successor to the rights of the said Clinton and Miner; and, second, under the statute of limitations. It may be true, as claimed b}' the learned counsel for the appellant, that the allegations of the complaint are too general and uncertain to make out a clear right under the first claim, and that the claim under the statute of limitations is met by the affidavit of Charles B. Garrison, which tends to prove that the dam. was placed in the river with the consent of those under whom the defendant claims, and not under a claim hostile to them. We think the allegations of the complaint are sufficiently definite to permit the plaintiff, if it can, to prove that the dam was placed in the river by the authority given by the said act, for the improvement of the navigation of said river, and that as an incident of such improvement of navigation the waterpower was created, the right to use which is vested in the plaintiff. The allegations of the complaint upon this claim may be somewhat indefinite, but it is quite clear that the plaintiff intended to set out a claim of right under that act, and if the defendant was not satisfied with the allegations he should have moved to make them more definite and certain, and ought not to be allowed to set up such indefiniteness as an objection to the granting of the preliminary; injunction. We also think that, notwithstanding the affidavit of said Garrison, the plaintiff might well be able to. convince a court or' jury that the dam was placed in the-river under a claim of right to do so in hostility to the rights of those under whom the defendant claims. Under the allegations of the complaint, and upon all the evidence produced on the motion, it seems to us the claim made by the plaintiff is not entirely destroyed by the answer and counter-affidavit, and that there is still reasonable ground for sup*482posing that the plaintiff will be able to establish its right upon a trial of this case. In such case it is not the absolute right of the defendant to have the preliminary injunction denied, or to have it set aside when granted. When1 the plaintiff shows fair and reasonable grounds for asserting the right claimed, then the right of the court to grant the injunction is very much in the discretion of the court, and when the granting of the injunction will be of little or no injury to the defendant, and the refusal to grant it will be of great and irreparable damage to the plaintiff, courts usually grant the injunction pending the litigation. In this case the evidence shows that the rebuilding of the dam which was destroyed by the defendant will ca,use but nominal damages to the defendant, and that unless the same be rebuilt by the plaintiff it, will suffer very great damage by destroying the use of the plaintiff’s’ mill in the mean time.

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 *483is that when tbe damages or injury threatened is of a character which cannot be easily remedied if the injunction is refused, and there is no denial that the act charged is contemplated, the temporary injunction should be granted unless the case made by the bill is satisfactorily refuted by the defendant.”

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 *484where there is & prima faeie or probable case suggested the court will interfere; . . . for I conceive that even when it is made out that there is a point to be decided which the plaintiff is fairly raising, still there is a further question, namely, whether interim interference, on a balance of convenience and inconvenience to the one party and to the other, is or is not expedient. Where the alternative is inter-terference or probable destruction of the property, there, of course, the court will be ready to lend its immediate assistance, even at considerable risk that it may be encroaching on what may eventually turn out to be a legal right of the defendant.”

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 *485under whom it claims in erecting and maintaining said dam, as well as in erecting large and extensive manufacturing establishments to be run by the water-power created by such dam. This dam the defendant secretly destroys, and then thi’eatens to prevent the rebuilding of the same, and the destruction of it again if rebuilt. The defendant is not materially injured by the rebuilding of the dam, while it is almost ruinous to the plaintiff if the dam be not rebuilt. In this state of the case, and until the real rights of the parties can be determined in this action, it seems to us clearly equitable that the plaintiff should be permitted to rebuild pending the litigation.

By the Court.— The ortler of the circuit court is affirmed, and the cause is remanded for further proceedings.