Pride v. Weyenberg

Pinney, J. 1. From an examination of the allegations of the plaintiff’s complaint and his prayer for relief, it is obvious that the action is an equitable one, with a claim for damages as incident to the relief prayed, and not a legal action with an injunction as a mere provisional remedy. It charges, in substance, that the doing of the alleged wrongful acts upon which the defendant has entered, and which he intends to consummate, “will destroy and make valueless the plaintiff’s property, and subject him to irreparable loss and damage; ” and that a continuance or repetition of such wrongful acts will necessarily result in a multiplicity of vexatious suits; and he prays for a perpetual injunction and for general relief. Fraedrich v. Flieth, 64 Wis. 184. 2. The only title or foundation for relief stated in the complaint by the plaintiff is mere possession, without any other allegation of right. The defendant, admitting the fact of plaintiff’s possession, sets up that it is wrongful and with no right to use the property for any purpose whatever, and that the defendant is acting by the authority of and under a contract with the Green Bay & Mississippi Canal Company, the true owner, and that it is entitled to possession. A mere naked possession, without any other right or title, is not sufficient to entitle the party having it to maintain a suit in equity against the true owner, entitled to possession, as for a nuisance or to redress repeated alleged injuries to such possession which will result in a multiplic [63] ity of suits; his remedy for any injury to his possession is by a legal, and not an equitable, action. Denner v. C., M. & St. P. R. Co. 57 Wis. 218. Certainly, under the issue before us, in which the defendant claims to be not a mere wrongdoer, but to be proceeding under the authority of the real owner, who is alleged to be entitled to possession, the rightfulness of the plaintiff’s possession is, at least, a material subject of inquiry. If the plaintiff has not a continuing lawful right to the possession of the premises, how can it be maintained that he has a right to exclude the real owner entitled to possession, or any one acting under his authority, or to ask a court of equity to become a party to his continued wrong by restraining the defendant from exercising acts of ownership over the premises? or how can he claim an injunction on the ground that he will be vexed with a multiplicity of suits by reason of threatened acts of the defendant in the future? If the plaintiff’s possession is wrongful, and the defendant is acting under the authority of the real owner, and entitled to possession, a court of equity will not assist the wrongful occupant by injunction, as against the rightful owner or his representative. The court commissioner, and the circuit court as well, were in error in holding that the inquiry proposed to the plaintiff on his examination after issue joined, under sec. 4096, E. S., was immaterial. The defendant had a right to show by the plaintiff that his possession was unlawful, and that it was one which he could not be allowed to assert as against the real owner, or the defendant, acting under him and in his right. Whatever the rights of the parties may be at law in an action for forcible entry and unlawful detainer, a court of equity will not extend the extraordinary remedy by injunction in aid of a wrongful occupant, as against one injuriously affected by his wrongful possession. 3. The order denied the defendant’s motion in respect to [64] a matter in which his position was well taken, and ordered the defendant to pay the plaintiff $10 costs of the motion. The defendant is thus required to indemnify the plaintiff for obtaining a wrong decision in the circuit court against him, and the case is thus brought within the principle of Cleveland v. Burnham, 60 Wis. 16, 20. The order is, on This ground, appealable, and the order, being erroneous in this respect, must be reversed. By the Court. — The order of the circuit court is reversed, and the cause is remanded.