Oeland v. Woldenberg

201 N.W. 807, 185 Wis. 510, 1925 Wisc. LEXIS 115

• Court: Wisconsin Supreme Court
• Decided: January 13, 1925
• Status: Published

Opinion

Eschweiler, J.

The removal by defendants of the wooden building in question from one portion of the lot to another and the replacing of it, in so far as it was charged to be a violation of city ordinances, is primarily the proper subject of prosecution by the city authorities. Waupun v. Moore, 34 Wis. 450.

The allegation in the complaint to the effect “that, if said building is moved to its proposed location, it will constitute a continuing fire menace to the said Hawthorne Apartments and to the interests of plaintiff,” when considered in connection with other facts therein recited, may be construed as intending to charge a breach of the common-law duty resting on the defendant owner of not making an improper or unlawful use of his. property so as to injure another.

In either aspect of the complaint, one seeking such relief as is here prayed must show that some special property right of his, as distinguished from the right of the general public, has been invaded. Tilly v. Mitchell & Lewis Co. 121 Wis. 1, 5, 98 N. W. 969; Anstee v. Monroe L. & F. Co. 171 Wis. 291, 293, 177 N. W. 26; Holzbauer v. Ritter, 184 Wis. 35, 198 N. W. 852; 29 Cyc. 1165; 20 Ruling Case Law, 477.

The only possible threatened danger is to the Hawthorne Apartments, which are owned, not by the plaintiff but by a corporation, Hawthorne Investment Association, not a party here. The right to resort to equity to prevent such possible injury to that building is in the owner thereof, the corporation, and not in any one stockholder though he be, as here, also its president and manager. If this individual stockholder may resort to his individual action so might any one or more of other stockholders, and the owner, the corporation, take no part though being the one having single ownership. !

In such situation it is clearly the corporate entity and not a stockholder that is the proper and real party in interest to bring such action. The substantial distinction between the two in such a situation has been pointed out in Button v. Hoffman, 61 Wis. 20, 23, 20 N. W. 667; Lee v. Young, 147 Wis. 53, 54, 132 N. W. 595; Petersen v. Elholm, 130 Wis. 1, 7, 109 N. W. 76; and again spoken of in Estate of Shepard, 184 Wis. 88, 197 N. W. 344. The same rule is announced in Converse v. Hood, 149 Mass. 471, 21 N. E. 878; 14 Corp. Jur. 294; 7 Ruling Case Law, 305. The question as to the right of the plaintiff to sue as such individual stockholder was presented by the demurrer, and for the reasons stated it should have been sustained.

By the Court. — Order reversed, and cause remanded for further proceedings according to law.