Jacobs v. Lakeside Lumber Co.

Siebeciceb, J. Many of the contentions of the parties need not be treated in view of considerations determinative of plaintiff’s right to* maintain the equitable action for an injunction. Plaintiff asserts that defendant’s threatened entry on the lot to dig the trench and to lay the steam pipe across it will seriously interfere with him and injure him in his rights under the contract with the town, and will cause him irreparable loss. The court found as a fact that “the laying of said steam pipe across said lot would probably seriously affect and injure the plaintiff in carrying out his contract with the town,” and held that defendant acquired 183 no right under the resolution of the town board to lay such pipe across the town lot. Plaintiff’s right to an injunction must rest upon the ground that, if defendant is permitted to lay the pipe across the town lot, it will do him an irreparable injury. As above stated, the court did not find what injury plaintiff would suffer if this pipe should be laid as threatened. It appears from the evidence that the plaintiff has erected a saw and planing mill on the town lot and is in possession thereof to run the water and light plants and his private enterprise under the agreement with the town. It is claimed that if the defendant is permitted tO' continue its trespass upon this lot it will seriously and vexatiously interfere with plaintiff’s operation of the town plants and his private power and mill plants and cause him an injury which cannot be adequately remedied at law. An examination of the evidence discloses that the only invasion of plaintiff’s rights which could result from defendant’s digging the trench and laying the steam pipe would he a slight interference for a short period with his possession of that portion of the lot so occupied by the defendant for this purpose. There is nothing to show that such occupation of the lot by the defendant would actually interfere with plaintiff in the operation of either his own business or the business of the town. We find nothing in the evidence showing that plaintiff is likely to suffer any substantial damages in his right to occupy the premises for the purpose of executing his contract obligations. The claim that the use of the steam pipe by the defendant would interfere with and injure any part of the water, electric light, or his private plant is not sustained by the evidence. Hence his only cause of complaint must be that defendant has technically trespassed upon his right to occupy the town lot for the purpose of operating these power, light, and mill plants. The injury resulting from the unlawful disturbance of the soil by digging ’and laying a pipe across the lot, though serious to the town as owner of the lot, results in but slight tres 184 pass upon, plaintiff’s rights, and is of a nature which can be adequately redressed in an action for damages. Therefore it cannot be said that the threatened injury is irreparable in its nature. Nor is it a continuous or repeated invasion of plaintiff’s rights. Under such circumstances, no ground for equitable interference by way of preventive relief is established, and judgment dismissing the complaint should have been awarded. 1 High, Inj. (4th ed.) § 701; Smith v. Oconomowoc, 49 Wis. 694, 6 N. W. 329. The court disregarded the defendant’s counterclaim for relief restraining plaintiff from interfering with defendant in its attempt to lay the pipe across the lot. This course was probably followed because defendant had commenced an action against plaintiff for such relief upon the same cause of action as here alleged. . The court tried that case and awarded judgment on the same day that judgment was entered in this action. An appeal was taken from the judgment in that action to this court and both causes were submitted together on the appeal in this court. The issues involved in that case dispose of the questions raised by the counterclaim and are determined on that appeal, which is decided herewith. By the Court. — The judgment of the circuit court is reversed, and the cause remanded with directions that the court award judgment dismissing the complaint.