Wisconsin Telephone Co. v. Krueger

The following opinion was filed May 13, 1902: Cassouay, O. J. The only ground upon which it is attempted to justify the granting and continuing of such injunction is that the right to have the pole and its equipment removed and abated as a nuisance, which had been so adjudged in favor of Krueger and Barnett May 12, 1900, had [153] been superseded by the plaintiff’s purchase of the right to maintain the pole through the condemnation proceedings under ch. 319, Laws of 1901. In other words-, and in the language of counsel, such right of the plaintiff “acquired through condemnation proceedings was superior to the judgment.” That judgment was in strict aecordánee with the mandate of this court. Krueger v. Wis. Tel. Co. 106 Wis. 96, 110, 81 N. W. 1041. It was, moreover, expressly affirmed by this court. Could that statute, enacted a year after the rendition of that judgment, supersede or nullify that adjudication, or authorize proceedings which would have that effect, or be superior to the judgment? The furthest any court has gone in that direction, as we now call to mind, was in the celebrated Wheeling Bridge Gase. In that ease the bridge had been constructed over the Ohio river under a'statute of Virginia. A decree had been entered in the federal court to •abate the bridge as an interference with interstate commerce and a public nuisance. Thereupon Congress, passed an act declaring the bridge to be a lawful structure, and that the ■same be an “established post road for the passage of the mails of the United States.” In passing upon the validity of the. act of Congress, Mr. Justice Melson, speaking for the majority of the court, said: “But it is urged that the act of Congress cannot have the effect and operation to annul the judgment of the court already rendered, or the rights determined thereby in favor of the plaintiff. This, as a general proposition, is certainly not to be denied, especially as it respects adjudication upon the private rights of parlies. When they have passed into judgment, the right becomes absolute, and it is the duty of the court to enforce" it. The case before us, however, is distinguishable from this class of cases so far as, it respects that portion of the decree directing the abatement of the bridge. Its interference with the free navigation of the river con•stituted an obstruction of a public right secured by acts of •Congress.” Pennsylvania v. Wheeling & B. Bridge Co. 18 How. 421, 431. [154] That was said on, the theory that Congress had the exclusive right to regulate interstate commerce and to establish post roads and provide for the transportation of the mails thereon. In that case the legislation was sustained only in so far as it affected the rights of the public. A similar distinction was observed in a recent ease in this court. Linden Land Co. v. Milwaukee E. R. & L. Co. 107 Wis, 493, 512, 83 N. W. 851. In considering the validity of a section of the-statute authorizing municipal corporations to grant to street railway corporations the right to construct, maintain, and operate such railways in the public streets without securing compensation to abutting landowners, it was there said by Mr. Justice Winslow, speaking for the court, that: “We think it may reasonably be said that this law Was only intended to authorize corporations to use streets with the consent of the city for carriage of freight as against the rights of the public, and not as against private owners, leaving such private owners in full possession of their rights to stop the construction, insist on compensation, or give their consent, as they chose. Such was substantially the construction placed upon the act authorizing telegraph companies to place their poles in streets, in the case of Krueger v. Wis. Tel. Co. 106 Wis. 96, 81 N. W. 1041. This construction seems to us to be entirely reasonable.” Here the rights secured to- Krueger and Barnett by a solemn adjudication, and which is said to be superseded and nullified by proceedings under the subsequent enactment, was purely private. There is plenty of authority to- the effect that the judgment of May 12, 1900, vested ill Krueger and Bametb rights of property which could not, directly or indirectly, be divested or nullified by subsequent legislation. De Chastellux v. Fairchild, 15 Pa. St. 18; 8. C. 53 Am. Dec. 570, and note; Boston Franklinite Co. v. Condit, 19 N. J. Eq. 394; People ex rel. Reynolds v. Common Council, 140 N. Y. 300, 307, 35 N. E. 485; McGahey v. Virginia, 135 U. S. 662, 10 Sup. Ct. 972. But we do not think that eh. [155] 319, laws of 1901, applied to that judgment. See. 9 of the act expressly provides that: “This act shall not apply to any proceeding or action now pending, nor to any claim or cause of action existing prior to the passage of this act,” etc. This being so, it is unnecessary to continue the discussion. By the Court. — The order of the circuit court is reversed, and the cause is remanded with direction to grant the- motion of the defendants to vacate and dissolve the preliminary injunction, and for further proceedings according to law. A motion for a rehearing was denied September 23, 1902.