#### Gimbel Brothers, Incorporated, Appellant, vs. Milwaukee Boston Store and others, Respondents.

*October 27*

November *16, 1915.*

*Injunction: When granted: Discretion: Mandatory injunction: Use of easement: Obstruction of alley: Rights of lessees: Substantial injury to plaintiff: &reat damage to defendant.*

1. The power to issue mandatory injunctions is sparingly used.

2. A lessee has a right to protect his leasehold interest against unlawful interference therewith, but in the matter of restraining the closing of an adjacent alley he does not stand in the same *490position before the court as would the owner, even though he has an unexpired option to purchase the leased premises.

3. In cases involving the right to the use of easements substantial damage is necessary to’ support an injunction.

4. Courts generally exercise their discretion against issuing an injunction where it will produce great public or private mischief merely to protect technical, doubtful, or unsubstantial rights, the plaintiff in such a case being relegated to his remedy at law to recover damages.

5. A defendant will not ordinarily be compelled to pull down an expensive structure merely because some legal right may be invaded, if the injury complained of is slight and if his acts were performed in good faith and in the belief that he was acting within his legal rights.

6. Thus, where defendants, relying on the validity of proceedings by a city to vacate part of an alley, began the erection of a building which inclosed the vacated portion, and thereafter plaintiff, who was a lessee of abutting property, brought an action to declare void the vacation proceedings, to restrain defendants from obstructing the alley, and to compel the restoration thereof, it was within the sound discretion of the trial court to deny the relief, no substantial injury to the plaintiff being sliown.

Appeal from a judgment of the circuit court for Milwaukee county; E. 0. Esci-iweileR, Circuit Judge.

*Affirmed.*

Certain real estate in what is now the city of *Milwaukee-*was platted in 1835. Block 69 was shown on the plat as in the diagram on page 491.

Spring street as shown on this plat is now Grand avenue-The alleys shown therein were twenty feet in width. The plaintiff is lessee of the west half of lots 1 and' 4 and of all of lots 5 and 8, together with the buildings thereon. The plaintiff’s lease extends to July, 1922. It also has an option from the lessor to purchase the premises which it occupies.

The defendants are lessees of a portion of the west half of block 69, abutting on both sides of the east and west alley. By ch. 134, Laws 1887, the legislature attempted to vacate that portion of the north and south alley lying to the north of the north line of the east and west alley, and also to narrow. *491tlie east and west alley five feet on its north, and five feet on its sontfi side, so as to leave it a width of ten feet. Plaintiff alleges and defendants admit that the legislation was void. The abutting owners acted on the theory that the legislation was valid, and the north end of the north and south alley was

closed and buildings were erected thereon. The building now held under lease by the plaintiff occupies the east half of this portion of the alley, as well as part of the five-foot strip on the north side of the east and west alley. On the east end of the ten-foot strip of this alley which was not vacated there are encroachments which render its use by teams difficult if not impossible. The south half of the north and south alley *492as originally platted does not appear to Rave been encroached upon or interfered with.

In June, 1911, proceedings were instituted in tbe common council of tbe city of *Milwaukee*for tbe vacation of tbe westerly 150 feet of tbe east and west alley, pursuant to tbe provisions of cb. VI of tbe city charter. An attempt at least was made to follow tbe charter provisions in carrying out tbe vacation proceedings. Tbe court fotind that such provisions were substantially complied with. Tbe plaintiff insists that they were not, and that in any event tbe law was void in so far as it affected tbe rights of tbe plaintiff in the alley in question which were peculiar to itself and not shared in by tbe general public. These proceedings were completed during tbe year 1911. Tbe defendants, apparently relying on tbe validity of tbe vacation proceedings, started tbe erection of a building on tbe premises leased by them, which inclosed tbe portion of tbe east and west alley which tbe city bad attempted to vacate. Thereafter tbe plaintiff brought this action to declare void tbe vacation proceedings and to enj oin and restrain tbe defendants from obstructing tbe west half of tbe east and west alley as originally platted and to compel the defendants to fill in an excavation which they bad made in said alley and to restore tbe same to its former state of usefulness, tbe plaintiff claiming that, inasmuch as its property abutted on said alley, it was entitled to have same kept open and unobstructed through tbe entire block. It was set forth by appropriate averment that the west portion of tbe alley attempted to be vacated was used by and was useful to tbe plaintiff and that it bad a property right in tbe entire alley by virtue of this lease, which granted to it tbe privileges and appurtenances appertaining to tbe property contained in tbe lease. This action was commenced November 7, 1911. At, this time tbe excavation for tbe new building bad been made and tbe building was partially constructed. There were some steel beams in place over tbe alley. Tbe city of *Milwaukee*was named as one of tbe defendants because part of tbe relief *493sought was to declare void the proceedings by which it attempted to vacate the portion of the alley in question.

The court found, among other things, that the proper steps were taken by the city to vacate the portion of the alley in question; that the value or usefulness of the plaintiff’s interest in the premises described in the complaint has not been materially diminished or affected by the vacation or closing of such portion of the alley; that the plaintiff was itself maintaining an encroachment upon the east half of the east and west alley, and that the building which it occupied covered the east half of the north half of the north and south alley, and that it was guilty of the same kind of interference in respect to the alley referred to as is charged against the defendants ; that under the circumstances disclosed by the evidence it would be contrary to equity to permit the plaintiff to maintain this action; that the plaintiff did not at the time of the commencement of the action have any private easement or property rights in the westerly 150 feet of the east and west alley; that the vacation or closing of said portion of the alley did not and does not have the effect to deprive the plaintiff, as lessee of the premises described in the complaint, of free access to and from the surrounding streets or to and from the system of public streets in the city of *Milwaukee.*In accordance with these findings, and conclusions of law based thereon, judgment was entered dismissing the complaint.

Eor the appellant there was a brief signed by *Van Dyke, Shaw, Muskat & Van Dyke,*attorneys, and *Thomas M. Kear-ney,*of counsel, and oral argument by *George D. Van Dyke.*

For the respondents *Milwaukee Boston Store*and *Herzfeld-Phillipson Company*there was a brief by *Flanders, Botium, Fawsett & Bottum,*attorneys, and *W.*II: *Timlin, Jr.,*of counsel, and oral argument by *Mr. C. F. Fawsett*and *Mr. Timlin.*

For the respondent *City of Milwaukee*there was a brief by *Daniel W. FLoan,*city attorney, and *Mark A. Kline,*assistant city attorney, and oral argument by *Mr. Kline.*

*494Barnes, J.

When this action was begun the plaintiffs lease still bad substantially eight years to run. Plaintiff also had an option to purchase during the life of the lease, which had not been taken advantage of up to the time the action was tried. The court found that the value or usefulness of the plaintiff’s interest in the premises described in the complaint had not been materially diminished or affected by the vacation or closing of the westerly 150 feet of the east and west alley. The court also found that the plaintiff was occupying the east half of the north half of the north and south alley which was vacated or attempted to be vacated under the provisions of ch. 134 of the Laws of 1887, and also a portion of the north five feet of the east half of the east and west alley, which was vacated at the same time and by virtue of the same authority. It was contended by plaintiff on the trial and it is contended in this court that this act of the legislature was void. The trial court was of the opinion that if plaintiff was hampered in the matter of ingress to or egress from the rear of the leased premises it was itself as responsible for its situation in this regard ••as were the defendants. It'was further found that the defendants in good faith relied upon the validity of the vacation proceedings before the common council of the city of *Milwau-ikee.*It appeared from the evidence that the basement of the new building had been excavated and that the building had at least been partially constructed over the alley before the action was begun, and that no preliminary injunction was sought.

As conclusions of law the court found that the act of the legislature in 1887 was unconstitutional and void, as were all the proceedings taken under it to vacate the portions of the alley that were attempted to be vacated, and that to allow the plaintiff to maintain the action would be contrary to the rules and practice of equity, and the complaint was dismissed for want of equity. The court also held that the vacation proceedings carried on by the common council of the city of *Mil-**495*wauhee*were regular and valid, and tbat by virtue of sucb proceedings tbe defendants bad tbe right to construct and maintain tbe building wbicb they bad erected over and across tbe alley.

Numerous questions are discussed in tbe elaborate briefs-wbicb bave been filed in tbe case. Some of these questions are important, and there is a wide divergence of authority as-to what tbe law is. Whether tbe plaintiff bad a special property right in tbe alley not common to tbe general public, whether, if sucb right existed, it could be condemned, whether, if it could be condemned, tbe statute under wbicb tbe proceedings were carried on was valid, and whether, if valid, tbe city charter was not violated in essential particulars in carrying on tbe proceedings, are questions wbicb we do not feel called', upon presently to decide, having reached tbe conclusion tbat tbe finding tbat plaintiff suffered no substantial damage is sustained by tbe evidence, and having-reached tbe further conclusion tbat under tbe facts of tbe case it was within tbe sound: discretion of tbe court to refuse relief by way of mandatory-injunction.

We may for tbe purposes of this appeal assume, without deciding, tbat plaintiff would bave a standing in court bad it-made a showing of substantial injury. Considerable evidence was offered *pro*and *con*on this issue. It would serve-no useful purpose to discuss this evidence in detail, and we-pass it with tbe remark tbat tbe finding of fact made is not against tbe clear preponderance of tbe testimony.

A lessee has a right to protect bis leasehold interest against unlawful interference therewith. However, tbe plaintiff hardly stands in tbe same position before tbe court as would tbe owner. Tbe owner, looking into tbe future and anticipating a change in conditions, might bave serious objections to tbe closing of an alley adjacent to bis premises for wbicb be bad no immediate use, where a lessee would bave no cause for complaint, provided bis needs or conveniences did not re-*496quire that the alley be kept open presently or during the term of his lease. Here the owner is not objecting to the closing of the alley, and presumably is willing that it should be closed, and plaintiff suffers no substantial damage from its being closed. To require the defendants to tear down a twenty-foot strip through the middle of the large building which it has erected would entail upon them a large amount of expense without any real benefit resulting to the plaintiff. The plaintiff has not taken advantage of its option to purchase, and may never do so, and, while it probably has a right to enforce specific performance if it elects to exercise its right, and to this extent has an interest in the real estate under the option, we do not think it- is such an interest as would entitle it to the relief here sought. *Sixta v. Ontonagon Valley L. Co.*157 Wis. 293, 305, 147 N. W. 1042. The plaintiff’s right must rest in the fact that it is a lessee in possession.

While the power to issue mandatory injunctions is vested in courts of equity, it is a power which is sparingly used. High, Injunctions, § 2. The granting of an injunction rests in the sound discretion of the court. *Kulinski v. Dambrowski,*29 Wis. 109, 115. The power itself being great, a high degree of judgment is required in order to use it wisely and never to abuse it. *State ex rel. Superior v. Duluth St. R. Co.*153 Wis. 650, 654, 142 N. W. 184. While equity will restrain a private nuisance, relief will not be granted in every instance of alleged nuisance. The present or threatened injury must be real and not trifling, transient, or temporary. 4 Pom. Eq. Tur. (3d ed.) § 1350. Most American courts adopt the view that in cases involving the right to the use of easements, substantial damage is necessary to support an injunction. 6 Pom. Eq. Jur. § 548. Ordinarily where an injunction will cause great injury to,tibe defendant and will confer little or no benefit in comparison upon the plaintiff, it is within the discretion of the court to refuse it. *Brande v. Grace,*154 Mass. 210, 31 N. E. 633; 22 Cyc. 782 and cases cited. Equity should not be successfully invoked merely to *497inflict injury or damage on tbe defendant without securing any substantial right or benefit to the plaintiff. This was said in an action brought to remove an obstruction from an alleged street, the dedication of which had not been accepted and the plaintiff asserting the right to have the same kept open. *Mahler v. Brumder,*92 Wis. 477, 66 N. W. 502. Courts generally exercise their discretion against issuing an injunction, where it will produce great public or private mischief, merely to protect technical, doubtful, or unsubstantial rights. In such a case the plaintiff is relegated to his remedy at law to recover damages. *Gray v. Manhattan R. Co.*128 N. Y. 499, 28 N. E. 498, and cases cited; *Bassett v. Salisbury Mfg. Co.*47 N. H. 426; *Demarest v. Hardham,*34 N. J. Eq. 469; *Nowak v. Baier,*78 N. J. Eq. 112, 77 Atl. 1062; *Springfield v. Springfield St. R. Co.*182 Mass. 41, 64 N. E. 577; *Methodist E. Soc. v. Akers,*167 Mass. 560, 46 N. E. 381; *Aynsley v. Glover,*L. R. 18 Eq. Cas. 544, 552. A defendant will not ordinarily be compelled to pull down an expensive structure merely because some legal right may be invaded, if the injury complained of is slight and if the acts complained of were performed in good faith and on the belief that the party was acting within his legal rights. *Cobb v. Massachusetts C. Co.*179 Mass. 423, 60 N. E. 790; *Hunter v. Carroll,*64 N. H. 572, 15 Atl. 17; *Engle v. Thorn,*3 Duer, 15.

The case of *Tilly v. Mitchell & L. Co.*121 Wis. 1, 98 N. W. 969, is perhaps relied on more -strongly than any other case cited on this branch of the case by the appellant. There, however, the plaintiff’s damages were held to he substantial. This was also the case in *Schuster v. Milwaukee E. R. & L. Co.*142 Wis. 578, 126 N. W. 26.

We conclude that it was within the sound discretion of the trial court to refuse the injunction prayed for.

*By the Oourt.*— Judgment affirmed.

TiMLiN, J., took no part.