It is claimed in the answer of the city and 'in the argument that the, proceedings for the change of grade in question were not taken under ch. 254, Laws of 1891, but under the general charter of the city. The record fails entirely, to support this contention. It is also claimed that by acquiescence in the paving of the street at the grade established by the ordinance of May 18, 1891, in-front of his premises, the plaintiff is estopped to object that the city has no authority to curb and raise the sidewalk to that grade. We do not deem it necessary, on this appeal, to go into this question of estoppel. The court should not be required to determine the facts on which the claim of estoppel is rested upon mere disputed averments in pleadings or conflicting ex parte affidavits. Such facts should be established by testimony taken in due course on the trial of the issues, before their existence is assumed. The same observations are applicable to the claim on behalf of the city that the street in front of plaintiff’s premises was never graded to, or the sidewalk constructed on, any established grade. In this preliminary proceeding it is sufficient to know that the city is acting under a void statute and ordinance, and it would be most unjust to allow it to proceed thereunder, to the manifest injury of plaintiff, until its right to do so is established by testimony regularly introduced on a trial of the cause on the merits. The city must proceed under its charter, without regard to ch. 254, Laws of 1891, or the ordinance of May 18, 1891, to make the threatened change in the curbing and sidewalk in front of plaintiff’s premises, or it must wait until the determination of this .action in its favor before it can be allowed to inflict the threatened injury to plaintiff’s property.
*400We conclude that the circuit court exercised its discretion properly when it refused to dissolve the preliminary injunction, and hence that the order in that behalf should not be disturbed.
By the Court.— Order affirmed.