Eau Claire Dells Improvement Co. v. City of Eau Claire

BashKobd, J. Tbe sole question before tbe court on this appeal is tbe assigned error of tbe trial court in vacating that part of tbe preliminary injunction which restrained tbe defendant from passing any resolution or ordinance declaring tbe contract set forth in tbe complaint to be null or void, and from doing any act for tbe purpose of declaring said contract, or tbe rights of tbe parties acquired thereunder, to be canceled or forfeited. Tbe pleadings present issues of law and fact, tbe final determination of which must be attended with serious and far-reaching consequences to tbe parties concerned. Tbe court must, upon final bearing, decide upon tbe validity of tbe contract and its proper interpretation, and [558] upon tlie power of the city of Eau Claire over the subject matter and its alleged waiver of the breaches of the contract. These questions are not before the court for adjudication upon the record and they are left open for future consideration without any intimation as to their final determination. Counsel for the respondent correctly states, as the rule adopted by this court, that in passing upon the propriety of a temporary injunction the sufficiency of the complaint will be assumed, if a fair doubt of law or fact as to' plaintiffs’ ultimate right of recovery is presented. Milwaukee v. Gimbel Bros. 130 Wis. 31, 34, 110 N. W. 7. The same counsel further states that • the determination of the sufficiency of the complaint upon this record might rather embarrass than aid the parties in the final trial of the cause upon the merits, and also states that the order of the circuit court modifying the temporary injunction was made upon the assumption that the complaint was sufficient. We shall therefore assume the sufficiency of the complaint in determining the question presented on this appeal. The purpose of the complaint is to establish the rights of the plaintiffs in the contract and to prevent the declaration of a forfeiture of those rights, and to prevent the enforcement, of a forfeiture if declared. To prevent the declaration of the forfeiture is one of the substantial grounds for relief set forth in the complaint, and, if the defendant is permitted to make the declaration in advance, one of the principal objects of the suit will have been defeated. The contention was made on behalf of the appellants that a court of equity will not as readily exercise its power or grant as full relief after forfeiture at law for the breach of a condition subsequent as before the forfeiture had been accomplished. In this connection a quotation is made from Maginnis v. Knickerbocker Ice Co. 112 Wis. 385, 88 N. W. 300, in which it is claimed this distinction is recognized. If there is any uncertainty as fc) the power or willingness of a court of equity to grant as [559] complete and efficient relief after tbe declaration of the forfeiture as before such declaration, that would afford an additional reason for maintaining the existing situation, until the final hearing. The rights asserted on behalf of the plaintiffs and controverted by the defendant are of contractual character and properly subject to the control of the court, and the stay of the threatened action of the defendant pending litigation cannot embarrass any proper defense asserted by it in the answer. It is urged on behalf of the respondent that the facts presented upon this record do not show that the declaration of a forfeiture by the city would cause the plaintiffs irreparable injury. The rule is well settled that the court, in granting a preliminary injunction, will go no further than necessary to preserve and protect existing rights pending the litigation. Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 510, 83 N. W. 851. But if it appears that the declaration of a forfeiture pending litigation would render futile in a measurable degree the relief sought by the plaintiffs or cause them serious and irreparable injury, then the preliminary injunction should have been continued, especially if no considerable damage is to be occasioned to the defendant. De Pauw v. Oxley, 122 Wis. 656, 100 N. W. 1028; Milwaukee E. R. & L. Co. v. Bradley, 108 Wis. 467, 84 N. W. 870. It cannot well be claimed that the defendant will suffer any material injury from the continuance of the injunction pending the litigation, while it does appear that the rights of the plaintiffs, as already indicated, might be seriously jeopardized by the threatened action of the defendant which is sought to be permanently enjoined by the judgment of the court. It is also urged on behalf of the plaintiffs that the declaration of a forfeiture and the assertion of claim to the property by the defendant would greatly injure their rights and interests and would create a cloud upon their title to their respective properties and cause them irreparable loss, damage, and in [560] jury. It sufficiently appears from tie complaint that suet would be the probable consequence of the threatened action to business enterprises of this character. The general rule as to the power and duty of the court in granting preliminary injunctions applicable to the present situation is carefully considered and accurately stated in Valley Iron Works Mfg. Co. v. Goodrich, 103 Wis. 436, 78 N. W. 1096, where the order of the circuit court dissolving a temporary injunction was reversed. The fourth headnote, concisely embodying the principle, is as follows: “The doctrine, that where all the facts pleaded upon which plaintiff's rights to equitable relief is based are positively denied by the answer, a temporary injunction granted at the outset will be dissolved, does not apply where it is shown that the preservation of the status quo pending the action is necessary to avoid the probability of plaintiff suffering irreparable loss and the final decree being ineffectual to accomplish the purpose of the litigation.” We conclude that the threatened action of the common council related to contractual rights and was subject to the control of the court; that, as the order modifying the injunction was based upon a mistaken view of the law, it is properly subject to review on appeal; that the ends of justice will best be subserved by maintaining the status qw of the parties pending the litigation; and that the temporary injunction as originally issued should be continued in force to the final hearing. By the Court. — The order appealed from is reversed, leaving the original temporary injunctional order in force.