Pettibone v. La Crosse & Milwaukee R.R. Co., 14 Wis. 443

The nature of this action is stated in the opinion of the court. The complaint, which was filed in January, 1860, after stating the unlawful appropriation of the plaintiff’s land to the use of the railroad company, and that no compensation had been made therefor, demanded that the damages which he had sustained might be assessed, and the defendants be adjudged to pay the same, and that in the mean time and until such compensation were made, the defendants should be enjoined from running cars oyer the land. The answer alleged, among other things, that “ if the premises were p. 444entere(^ upon, taken or used as in the complaint alleged, the same was done with the acquiescence and consent of the plaintiff.”

By the Court, Paine, J. This action was brought to enjoin the defendants from running their cars across the plaintiff’s land, upon the ground that no compensation has been made for the land. The counsel for the appellants contended that the decision of this court in the case of Davis vs. The La Crosse & Milwaukee R. R. Co., 12 Wis., 16, should be overruled, and that no injunction should be granted to restrain a railroad company from running their cars over any land upon which they had built their track, until it appeared that the compensation for the land had been legally ascertained. It was said that either party, the owner of the land as well as the company, could move in that matter and have p. 446^16 C0mPensa^011 fixed, aad therefore if he did not do that he ought not to be allowed to enjoin the company from using his land. But if there had been no change in the law, we should adhere to the decision m -the Davis. , „ . ground that it was tor the company to take case, upon the the initiative, when it wished to appropriate the land of another, and did not devolve upon the owner to set in motion the proceedings designed to divest him of title. But at its last session the legislature enacted that the owner might in all cases proceed to cause the damages to be assessed, and that no injunction should issue until they were assessed. Chap. 175, Gren. Laws of 1861. What is the effect of this act r pon the question, the conclusion to which we have come in this case makes it unnecessary for us to determine. Whether it infringes in any degree upon the constitutional right of the citizen to have his property or the compensation for it, or is a regulation of the mode of proceeding in such eases which the legislature may legitimately enact, is a question that can be settled upon argument when it necessarily arises.

But we have come to the conclusion that independently of the effect of this statute and of the decision in the Davis case, there were good grounds for denying the injunction in this case. We think a decided preponderance of the evidence shows that the company altered the location of its road and ran the track where it now is upon the plaintiff’s land, at his instigation and upon his promise to give them the right of way. This being so, it is a good answer to his application for an injunction, whether his promise was made in such form as to be binding upon him in law or not His counsel argued the case upon the theory that if such promise was void under the statute of frauds, then it could have no weight in determining the plaintiff’s right to an injunction. But this by no means followa Such a conclusion would be entirely repugnant to all the reasoning upon which a part performance of a parol contract for the sale of lands, which is void under the statute of frauds, is held to take the case out of the statute. In such cases courts of equity not only refuse to interfere in behalf of the party who seeks to rely on the statute, but actually interfere against him, and compel him p. 447to perform the contract, and this upon the ground that to allow him to set up the statute would operate as a fraud the other party, and leave him liable to an injury for which he could not be properly compensated. We do not say that the facts disclosed here would be sufficient to justify a specific performance against the plaintiff, nor that they would not. But whether they would or not, we think them fully sufficient to justify a refusal of an injunction in his behalf, which may be refused upon slighter grounds than would be required to enforce a specific performance against him. An injunction is an extraordinary remedy, and as was said by this court in Sheldon vs. Rockwell, 9 Wis., 180, the granting or refusal of it “ rests in the sound discretion of the court. They are never granted when they are against good conscience or productive of hardship, oppression, injustice or public or private mischief.” The authorities cited in that case show that they will not be granted where the party complaining has unreasonably acquiesced, by mere silence and inaction, in the appropriation of his property for public improvements. And how much more clearly should they be refused where the original appropriation was at his instigation and under a promise by him to give the right of way. The invalidity of an agreement at law will not prevent a court of equity from looking at it, to see whether either party is attempting to use it to work a fraud or wrong upon the other. Blakesley vs. Johnson, 13 Wis., 530. And the same principle is applicable to the determination of the right to an injunction.

It is undoubtedly true that considerable inconvenience might result from granting such an injunction. And although we do not consider that as a sufficient ground for denying it, where the party has not unreasonably acquiesced in, and did not originally invite the act of which he complains, yet where either of these facts did exist, the inconvenience resulting from an injunction adds great force to the reasons for its refusal. When the owner stands upon his legal rights, it is for the company to take the necessary steps to acquire the right of running over his land. And perhaps his mere inaction for a time should not be too strongly con-p. 448strae(^ acquiescence, in view of the course of decisions the rights of companies to enter preliminarily for purposes of location, survey, &c., before making compensation. But where it appears that the party invited them to enter, and promised to give the right of way, it may fairly be assumed that the company neglected, in consequence of such acts on his part, to take the steps necessary to obtain the right. And that being so, whatever may be his rights at law, he ought not to be allowed to impose on the company or on the public the inconvenience of an injunction.