City of Eau Claire v. Matzke

WiNslow, J. This is an action in equity, brought by the city, to obtain a mandatory injunction compelling the defendant to remove certain buildings owned and maintained by defendant, and which are alleged to encroach upon a public street in the city and obstruct a public alley, and [292] which defendant refuses to remove. A general demurrer to the complaint was sustained on the ground that the remedy at law was adequate. It must now be considered as well settled in this state that a city or village, in its corporate capacity, may maintain an action in equity to prevent threatened obstructions or serious unlawful injuries to public streets. Waukesha Hygeia Mineral Spring Co. v. Waukesha, 83 Wis. 475; Neshkoro v. Nest, 85 Wis. 126. No good reason is perceived why the equity powers of the court may not also be invoked to compel a restoration of a street unlawfully obstructed or encroached upon. In fact, such actions have been approved by this court in cases of obstructions unlawfully placed in streets by railway companies in building their tracks. Jamestown v. C., B. N. R. Co. 69 Wis. 648; Oshkosh v. M. & L. W. R. Co. 74 Wis. 534. The principle on which these cases rest applies to an obstruction or an encroachment maintained by a lot-owner. In both cases there is an invasion of the public right and a duty resting on the defendant to remove the unlawful structure. We think the action is properly brought. By the Court.— Order reversed, and action remanded • with directions to overrule the demurrer.