21 Wis. 667 | Wis. | 1867
The object of this action is to prevent by a perpetual injunction the railroad company and its employees from placing or erecting any more piles, posts, timbers or other obstructions in the Sheboygan river, at the railroad bridge constructed where the track crosses that river in the town of She-boygan ; and further, to have removed the piles, posts, timbers and other obstructions already placed in the river at that point by the company. It is alleged in the complaint, that these obstructions greatly hinder the natural flow of the water through and under the span of the railroad bridge, and in times of high water cause the waters to dam up and flow back in such a manner as to overflow, greatly injure and destroy a public highway of the town located a short distance above the railroad bridge, near the river; and also in such a manner as to greatly injure and destroy bridges belonging to the town, built across the river above the railroad bridge ; by means whereof the town sustains great loss and damage, and passage and travel
The main objection taken here to the complaint is, that the injuries complained of are of a public nature, affecting alike the people of the state, and not causing any special or peculiar injury to the town of Sheboygan, and hence constitute a common or public nuisance. And it is said that the town cannot maintain an action in equity to redress these injurious acts, but that the remedy is by indictment on behalf of the state; or by a special action brought by the overseer of highways of the road district within which the injuries are committed, as provided by section 125, chap. 19, R. S. 1858.
It is very questionable whether, upon principle or authority, the town would be entitled to a perpetual injunction to restrain the commission of acts which constitute a public nuisance, unless it shows that it sustains some special injury from those acts not common to the public in general or to large classes of the community. For when the act complained of is injurious to the whole state and not specially so to the rights of an individual, the general remedy is by a prosecution or action on behalf of the state. For, says Blackstone, “ it would be unreasonable to multiply suits by giving every man a separate right of action for what damnifies him in common only with the rest of his fellow citizens.” Book 4, 167. But when the wrong, besides being a public nuisance, is specially injurious to a person, then he may maintain an action or suit in equity for an injunction in his own name. See Milhau v. Sharp, 27 N. Y., 611; Doolittle v. Supervisors of Broome Co., 18 id., 155, and cases referred to in notes to "Waterman's Eden on Injunctionsj chap. 11, pp. 259 et seq.
It is not very obvious upon what ground the town places its
But assuming that the town does suffer some special injury in consequence of the overflow of the public highway and bridge, not common to the whole community, and then, even, upon the facts stated, we are of the opinion that no injunction should be granted until by an action at law it is established that the acts of the company are not authorized by its charter. In the case of the Mohawk Bridge Co. v. The Utica and Schenectady R. R. Co., 6 Paige, 554, Chancellor Walworth says: “ If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay irreparable mischief, where the complainant’s right is not doubtful, without waiting for the result of a trial. But where the thing sought to be restrained is not in itself noxious, but only something which may according to circumstances prove to be so, the court will refuse to interfere until the matter has been tried at law by an action.” There it was claimed that the railroad company was constructing its bridge across the Mohawk river in such a manner as would endanger the security and existence of the bridge belonging to the bridge company, besides disturbing the bridge company in the enjoyment of its franchises and property. And the chancellor laid down the above rule in the case as to when a court of equity will interfere by injunction. The case there presented is certainly quite as strong, if not much more so, than the one made out by the complaint before us.
In this case, we therefore think, no injunction should issue until, at least, by an action at law, the acts of the company are shown to be illegal and not authorized by its charter.
By the Court. — The order of the circuit court overruling the demurrer is reversed, and the cause remanded for farther proceedings according to law,