Marshfield Land & Lumber Co. v. John Week Lumber Co. , 108 Wis. 268 ( 1900 )

BaRdeeh, J.

We will first consider the appeal from that portion of the order of February 23, 1900, which dissolved the injunction granted in plaintiff’s favor by the court commissioner. This order was made by the court upon application of the defendant, and without notice to plaintiff. Sec. 2781, Stats. 1898, says: “If the injunction be granted by a judge without notice the other party, at any time before trial, may apply, upon noUce, to the court, or to the presiding judge thereof, in which the action is brought to vacate or modify the same.” Another section provides that, “An order made out of court, without notice, may be vacated or modified without notice by the judge who made it; or upon motion, after notice, by such judge or by the court, but not otherwise.” Sec. 2814, In view of these plain statutory provisions, it is impossible to justify the action of the court above referred to. Sufficient facts were stated in the complaint to give the court commissioner at least a colorable right to make the order restraining the defendant from committing the repeated trespasses upon the plaintiff’s land, as alleged. No matter wbat the exigencies were, the court ought not to have vacated such order except upon notice. The suggestion by defendant’s counsel that the order suspended “ the general and ordinary business of a corporation ” hardly merits sober consideration. The acts complained of were continued trespasses upon lands owned by plaintiff. It can hardly be said that such is “ the general and ordinary business ” of the defendant, although there are loggers in northern Wisconsin whose acts would seem to give some color to this assumption. The fact that the defendant was a lumbering corporation, and that a part of its business was the handling of logs, is not sufficient to bring the situation either within the letter or the spirit of sec. 2780, which prevents a court commissioner from issuing an injunction to suspend the general and ordinary business of a corporation. The other objections urged against the order are not deemed of sufficient importance to require notice.

The order of March 6th was based upon the counterclaim in defendant’s answer and certain affidavits, referred to in the statement. The remaining question is whether there was a sufficient showing made to authorize the court in restraining the plaintiff from obstructing the road or molesting the defendant in its use. When we come to consider all the facts that were before the court, the conclusion is certain that plaintiff was the owner of the premises in question ; and, while there is an attempt in the answer to put that fact in issue, the subsequent allegations and the proof produced on the hearing are sufficient to set that matter at rest as stated. The only ground upon which the defendant sought to justify its use of the road was that it had become a highway by prescriptive use. An attempt to set out such use was made in the answer, but the affidavits used on the hearing overwhelmingly show that this contention was unfounded. The most that appears is that a logging road had been made there in the early 70’s, which had been used at different times in later years by persons logging in that neighborhood. At times some settlers had hauled a few loads of hay over it. After nonuse for a number of years it grew up to brush and was incumbered by windfalls. No pretense or claim was made that the town had ever adopted it as a highway or had ever done any work or expended any money upon it. Counsel for the defendant virtually admitted that their claim in this regard was without foundation. They then seek to justify the order of the court on the ground that it was customary in logging sections for loggers to use old roads, and to make such repairs as were necessary to that use. Undoubtedly that is the custom, and very few owners of land object to such use. But such custom does not justify such use when the owner of the property objects. The circumstances might be such that an implied license of use, good until revoked, might be inferred. Such license would be revocable at any time. In this case, if it ever existed, it had been revoked, and its revocation had been emphasized by the strong arm of the law. It-can make no difference to defendant’s right to an injunction that such revocation caused some hardship to it, or was prompted by some unneighborly feeling towards it. The owner was entitled to the free and exclusive use of its property and without restraint. Any infringement of this right by the court was unlawful, unless based upon some paramount right possessed by defendant or shared by it in common with the public. No such right or privilege was shown, and the order of the court was an unjustifiable invasion of the property interests of the plaintiff. As before suggested, it is no justification to say that it prevented an apparent injustice, or that the acts of plaintiff were indefensible from an ethical point of viewr. An injustice may often result from the enforcement of strict legal rights, or from acts committed with a malicious motive on one’s own premises, or with regard to one’s own property. Quite a notable instance may be found in the recent case of Metzger v. Hochrein, 107 Wis. 267. The plaintiff had a clear legal right to the enjoyment of its property free from any interference by defendant, and the right to prevent such interference by an appeal to equity where the injury was irreparable.

An attack is made upon the complaint as not stating facts sufficient to warrant the interference of equity in plaintiff’s behalf. On this question we express no opinion. If it be admitted that it is infirm in this regard, it adds nothing to the defendant’s counterclaim, neither does it justify the court in an arbitrary dissolution of the injunction based upon it. The statute referred to provided a reasonable rule of practice which should have been followed.

Our conclusion is that that portion of the order of February 23, 1900, appealed from, should be reversed, and the order of March 6, 1900, should also be reversed.

By the Cov/rt.— The orders are reversed as stated in the opinion, and the cause is remanded for further proceedings according to law.