Diedrichs v. Northwestern Union Railway Co. , 33 Wis. 219 ( 1873 )

Lyon, J.

There could be no doubt of the plaintiff’s right to the injunction asked for, if the defendant is about to take permanent possession of his land without a determination, by some legal method, of the sum to be paid to the plaintiff therefor, and payment or tender of such sum to the plaintiff or some person authorized by law to receive the same. Bohlman v. The Green Bay & Lake Pepin R'y Co., 30 Wis., 105, and cases cited. But to entitle him to such injunction, he must show that the defendant threatens or intends to take possession of his land without making such payment or tender. The complaint in this action lacks this indispensable averment. Every averment which it contains may be true, and still the defendant may not have threatended or intended to enter upon the plaintiff’s land (until after it had made full compensation therefor as required by the constitution and laws of the state. This essential averment cannot be supplied by inference. It must be positively made, or the complaint will be held bad on demurrer.

The only relief demanded in this action is, that the defendant be restrained from taking possession of the plaintiff’s land until it makes compensation therefor. The complaint fails to state facts which entitle the .plaintiff to such relief. Hence it fails to state facts sufficient to constitute a cause of action, and the demurrer thereto for that cause was properly sustained.

By the Court. — The order sustaining the demurrer is affirmed.