Town of Neshkoro v. Nest

55 N.W. 176, 85 Wis. 126, 1893 Wisc. LEXIS 255

• Court: Wisconsin Supreme Court
• Decided: May 2, 1893
• Status: Published

Opinion

Winslow, J.

It is insisted by respondents that the town has no such interest in a public highway as will entitle it to maintain an action in equity to prevent obstruction thereof, and they rely on Milwaukee v. M. & B. R. Co. 7 Wis. 85, and Sheboygan v. S. & F. du L. R. Co. 21 Wis. 670, to justify their contention. How far these cases sustain respondents’ position it is unnecessary to consider. This court has recently, in a number of cases, affirmed the right and power of a municipal corporation to maintain such an action. Jamestown v. C., B. & N. R. Co. 69 Wis. 648; Oshkosh v. M. & L. W. R. Co. 74 Wis. 534; Waukesha H. M. S. Co. v. Waukesha, 83 Wis. 475. The question is no longer open.

It is further insisted that a court of equity will not interfere until the right is determined at law. This is not an indictment or information on behalf of the general public, but an action in equity by the town in its corporate capacity merely, based on its special interest as the guardian of thé highways within its limits; and we think it is within the provisions of oh. 190, Laws of 1882 (sec. 3180, S. & B. Ann. Stats.), which provide that an equitable action may be brought before the nuisance is established in an action at law.

By the Court.— Order reversed, and cause remanded with directions to overrule the demurrer.