Wilson v. City of Mineral Point

39 Wis. 160 | Wis. | 1875

Lyon, J.

It is sufficiently averred in the complaint that the defendant Weidenfeller, acting under the authority and orders of the regularly constituted authorities of the defendant city, is about to destroy fences, fruit and ornamental trees and shrubbery standing and growing upon premises owned by the plaintiff and occupied by him as his residence and homestead; that the pretense for so doing is that such fences, trees and shrubbery are within the limits of public streets; but that such pretense is unfounded in fact, and the defendants have no lawful authority to do the threatened acts.

On the facts averred it is clear 'that the plaintiff is entitled to an injunction as prayed in the complaint. It is quite true that the courts will not interfere by injunction to restrain the committing of a mere trespass, for which, if committed, the recovery of damages in an action at law would be an adequate remedy. It is also time that the courts will interfere by injunction and prevent a threatened injury, which, if inflicted, will be irreparable.

An injury is irreparable when it is of sucb a nature that the injured party cannot be adequately'compensated therefor in damages, or when the damages which may result therefrom cannot be measured by any certain pecuniary standard. High on Injunctions, § 460 and cases cited. It is said by Judge Story that “if the trespass be fugitive and temporary, and adequate compensation can be obtained in an action at law, there is no ground to justify the interposition of courts of equity. Formerly, indeed, courts of equity were extremely reluctant to interfere at all, even in regard to cases of repeated trespasses. But now there is not the slightest hesitation, if the acts done or threatened to be done to the property would be ruinous or irreparable, or would impair the just enjoyment of the property in future.” 2 Eq. Jur., § 928.

That the threatened injuries which this action was brought to prevent, would, if inflicted, be wreparable, in the legal acceptation of that term, and would greatly impair the just enjoyment of the plaintiff’s property, is perfectly well settled. No one will seriously contend that a money compensation is an adequate remedy for the loss of the trees and shrubbery which the complaint avers the defendants threaten to destroy; and it would be a denial of justice were the courts to refuse the plaintiff the protection he asks, and thus pei’mit his home to be permanently despoiled. See High on Injunctions, § 467 and cases cited.

We think the complaint states a cause of action against both defendants, and that there is no misjoinder of causes of action, and no defect of parties. We do not decide whether or not the complaint states facts sufficient to entitle the plaintiff to recover damages, but only, that if the averments therein contained are true, he is entitled to the injunction prayed.

By the Court. — Order affirmed.