State ex rel. Oshkosh, Algoma & Black Wolf Railroad v. Burnell

Winslow, J. It appears pretty clearly from the petition and return in this case that there are some serious questions which will be presented upon the hearing of the appeal from the final judgment below, when that appeal is reached. We shall express no view on these questions now, save that they are questions of importance. It appears that a railway com 250 pany, incorporated under sec. 1820, Stats. 1898, for the purpose of carrying persons only, endeavored to condemn a right of way for a trolley electric line across the right of way of the Chicago & Northwestern Bailway Company, and at the same time to compel the joint construction of a crossing. The condemnation proceedings have been carried successfully through the circuit court, the amount awarded by the commissioners has been deposited in court, and judgment entered in the circuit court dismissing the appeal of the ■Chicago & Northwestern Bailway Company to that court. From this judgment an appeal has been taken to this court. The petitioner claims that it has now an absolute right to a writ of assistance, under sec. 1850, Stats. 1898; that this proceeding was really a proceeding to force a crossing, ■under subd. 6, sec. 1828, Stats. 1898, and that the right to a crossing is absolute; hence that a writ of assistance should at once issue, and that the circuit court, in refusing the writ pending the appeal, has refused to perform a clear duty. On the other hand, the claim by the Chicago & Northwestern Bailway Company is that, if the proceedings are of any validity at all, they are proceedings, by one railroad company to condemn lands of another, and that under sec. 1854, Stats. 1898, in such cases the question of the necessity of taking the land is open for retrial in the circuit court, and that no crossing should be forced, by means of which a •street railway will cross a steam railway on grade, until the •question of the right to cross is finally settled. This view was adopted by the circuit judge, and we think with good reason. The questions here presented are quite important to the public at large as well as to the corporations themselves. The multiplication of grade crossings over important railway lines is not desirable. No urgent necessity appears why this cr'ossing should be put in until this litigation is terminated and the right to a crossing finally determined. The Chicago & Northwestern Bailway Company 251 has given a sufficient undertaking to protect the petitioner from, loss in case it should be finally determined that the petitioner is entitled to a crossing. In order to justify mcm-damus in such a case as the present, it must appear that the duty of the court below was plain, the refusal to perform such duty clear, the result of the refusal prejudicial, and the remedy by writ of error or appeal utterly inadequate. State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591. We cannot say, upon the papers before us, that it is plain that it was the duty of the court to award a writ of assistance, nor can we say that there is any emergency calling for immediate action, or that the remedy by appeal or writ of error is not entirely sufficient. The questions involved deserve that careful consideration which they will receive upon the hearing of the appeal upon the merits but cannot well receive upon a summary proceeding of this nature. Were we to take them up and decide them now, we should be causing the writ of maoiclamus to serve the purpose of a writ of error or appeal, which has never been the policy of this court. By the Court.— The peremptory writ is denied.