103 Wis. 467 | Wis. | 1899
This action is undoubtedly one in equity. In so far as the complaint alleged special damage caused by the excavation made by the defendant not appearing, we have no concern. It is not claimed by plaintiff that the demurring defendant is in any way responsible therefor, and we may dismiss that branch of the case without further comment.
The plaintiff does insist, however, that the intruding wall is in the nature of a nuisance or continuing trespass, which she is entitled to have abated, and that the defendant, being the owner of the repair shop, the premises connected therewith, and in possession thereof, is a proper party to this litigation, and directly interested in the relief sought. The defendant challenges her right to any relief in this' action on the ground that the facts stated show that she has a complete and adequate remedy at law. In the early case of McCourt v. Eckstein, 22 Wis. 153, this court held that a projecting wall, like the one mentioned in the complaint, might be treated as a disseisin by construction of law, at the election of the owner of the property intruded upon, and that he might maintain ejectment. In a subsequent case (Zander v. Valentine Blatz B. Co. 95 Wis. 162) it was held that the intrusion by one lot owner of his foundation 'wall upon the land of the adjoining owner, without permission, was a trespass, and might be treated as a disseisin, at the election of the latter; but, where the owner of the land so intruded upon occupied the lot up to his line continuously, he thereby elected to treat the intrusion as a trespass, and could not maintain ejectment therefor. The principle recognized in both these cases is that the owner of the lot so intruded upon may elect to treat the intrusion either as a trespass or a disseisin, and would therefore be entitled to the relief appropriate to his election. In the latter case the evidence showed that the plaintiff was in possession of his full lot, occupying up to the line, and, his possession being undisturbed, it was held that he could not maintain an action of
The plaintiff being so circumstanced that she cannot bring her action of ejectment, we are led to the inquiry of whether, under the facts stated, she can maintain this action. There can be no doubt but that the trespass complained of is a continuing one. It is equally certain that a court of equity has the jurisdiction and the power to settle, once and for all, the rights of the parties. The following cases amply sustain this proposition as applied to cases like the present: Wheelock v. Noonan, 108 N. Y. 179; Barron v. Korn, 127 N. Y. 224; Eno v. Christ, 25 Misc. (N. Y.), 24; Pile v. Pedrick, 167 Pa. St. 296; Harrington v. McCarthy, 169 Mass. 492; Coatsworth v. L. V. R. Co. 156 N. Y. 451. The facts stated in the complaint are deemed sufficient to show that a trespass has been committed upon plaintiff’s land, and is maintained and continued by the defendant. ‘ It is of such a nature as to attach to and follow the ownership of the adjoining premises, and, if the allegations of the complaint are proven, the plaintiff will be entitled to some relief. She, having seen fit to appeal to a court of equity, must rest content with such relief as the enlightened conscience of the chancellor may dictate. Such relief will depend altogether upon a careful survey and consideration of all the facts and circumstances disclosed on the trial. It might, if the circumstances seemed to justify it, extend to a complete removal of the offending wall, or it might be limited to nominal damages. Some of the eases, after all the facts were disclosed, have gone to the extent of denying relief entirely, and leaving the plaintiff to
By the Court.— The order of the superior court of Milwaukee county is affirmed.