Milwaukee Street Railway Co. v. Adlam

Cassoday, J. This action is not agiinst the city, but is only against its contractors engaged in the work of repaving the street, as mentioned in the 'foregoing statement. The contract of the defendants with the city is silent as to whether the defendants, in doing the work, were authorized to obstruct or interfere with the running of cars by the plaintiff on the street in question. Of course it implies such occupancy of the street during the time as might be reasonably necessary to perform the work according to their contract. There is no claim or'pretense that the plaintiff’s tracks were not lawfully and rightfully in the street in question at the time of making such contract, nor that the plaintiff was not then lawfully and rightfully run [148] ning its cars thereon. The permission to the railway company to use the street for the purposes indicated does not ' imply that the municipality thereby surrendered its right to make needful police regulations respecting the same, nor that the company was thereby authorized to unnecessarily obstruct the street or interfere with travel thereon, or to negligently operate its cars. Elliott, Roads & S. 334. It may be fairly inferred that the defendants entered into the contract, and agreed to perform the work at the price therein named, with reference to the condition of the street and the railway tracks and the running of cars thereon at the time it was made. The primary object of a public street in a city is for public travel. Jochem v. Robinson, 66 Wis. 641; Hay v. Weber, 79 Wis. 590. As appears from the foregoing statement, the plaintiff is extensively engaged in the carriage of passengers upon the street in question and other streets in the city. Assuming that, under its police power, the city had authority to arbitrarily stop the running of such cars during the time of such repaving, and that it might have delegated such power to these contractors (questions not here decided), yet it does not appear that the city has delegated any such power to the defendants, nor that it has attempted to exercise any such power. On the contrary, as will appear from the foregoing statement, the contract seems to contemplate the continuance of travel of some kind upon the street pending the performance of the work — hence the provisions for putting up and maintaining barriers and lights at night to prevent accidents. Certainly, for much of the time, such cars would not be as likely to interfere with such repaving as other vehicles, since the cars would at all times move upon fixed lines. The public had as much right to travel by such cars as they had by other vehicles. To allow the contractors to arbitrarily stop the cars, and permit other vehicles to continue running on that street, pending [149] tbe work, would be to authorize an unwarrantable discrimination against not only the plaintiff but also against persons desiring to travel upon that street in the cars. It is fairly demonstrated by the affidavits in the record that there was no necessity for stopping-the .running of the cars over the street in question during such repaving. In fact it appears that other contractors — and in one instance these defendants — had repaved streets on which the plaintiff’s tracks were located under agreements that they would not interfere with the running of cars thereon at a reasonable speed while doing the work. True, in such other cases the contractors respectively exacted of the company, and the company paid, five cents per square yard, measured in the tracks and on the side next to curbings, as a condition of their not interfering with the running of cars thereon at a reasonable speed while doing the work; but that fact does not support the contention that such stoppage was an absolute or even a reasonable necessity. On the contrary, it fairly demonstrates that while such continuous running slightly interfered with the performance of the work, yet there was no reasonable necessity for absolutely suspending the running of cars. Such slight interference naturally suggests a slight increase in the cost of the work; but the price for doing the work is purely a matter of contract, and, as indicated, it may be fairly assumed that it was taken into account in making the contract in question. However that may be, the defendants have no contract relations with the plaintiff, and cannot enforce the making of such contract or the payment of money on the theory that there is a necessity' that the running of the cars should be absolutely suspended, when it is thus demonstrated that no such necessity exists. While the defendants had the right to interfere with the running of such cars so far as it became reasonably necessary in the [150] performance of the work, yet such right to so hinder or obstruct was by no means absolute or continuous, but at most temporary, depending upon such necessity; and such necessity must have depended upon the width of the street, the nature of the Work, the conditions of the weather, the duration of the obstruction, and perhaps other circumstances. The question is somewhat similar to the interference with travel upon streets and sidewalks by abutting owners, which has received some consideration from this court. Jochem v. Robinson, 66 Wis. 642; Raymond v. Keseberg, 84 Wis. 302. In Gas Light & Coke Co. v. Vestry of St. Mary Abbott's, 16 Q. B. Div. 5, the municipality was restrained from using steam rollers in repairing the street in a way to injure the plaintiff’s gas pipes in the earth beneath. LiND-ley, L. J., speaking for the court, said: “The authorities, and particularly Metropolitan Asylum Dist. v. Mill, 6 App. Cas. 193, show that an action lies for an injury to property, unless such injury is expressly authorized by statute, or is, physically spealcmg, the necessary consequence of what is so authorized." In Hamilton v. V., S. & P. Railroad, 119 U. S. 280, the right of the^ railroad company to construct a bridge over a navigable stream in a way to interfere with the navigation thereon was involved; and Mr. Justice Field, giving the opinion of the court, said: “ Two conditions, however, must be deemed to be embraced within this implied power,— one, that the bridges should be so constructed as to insure safety to the crossing of the tra.ins, and be so kept at all times; and the other, that they should not interfere unnecessarily with the navigation of the streams'' That language has. been quoted approvingly by this court. J. S. Keator Lumber Co. v. St. Croix Boom Corp. 72 Wis. 86. It follows from what has been said that the rights of neither of the parties to this action were absolute, as against the other, in respect to the street in question, but the rights [151] of each were relative with respect to the duties and obligations of the other and the traveling public generally. By the Court.— The order of the superior court of Milwaukee county is reversed, and the cause is remanded for further proceedings according to law.