Lange v. La Crosse & Eastern Railway Co.

Cassoday, C. J. The principal object of bringing this action may have been, as claimed by counsel for the defendant, to nullify and set aside the ordinance in question. The statute expressly gave to the common council of the city power to pass such ordinance. Sec. 1862, Stats. 1898. This court has repeatedly held that an ordinance of a city granting such corporate rights and franchises “has the force and effect of a statute of the state.” State ex rel. Rose v. Superior Court of Mil. Co. 105 Wis. 672, 673, 81 N. W. 1046, and cases there cited; Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 511-513, 83 N. W. 851. The common council having the power to pass such ordinance, and the act of doing so being legislative in character, the same is not subject to revision by the courts on the mere ground of inexpediency or impropriety. But such ordinance only covers, and could only cover, such rights as the common council had the power to grant. Id. It in no way purports to affect, nor could it affect the rights of abutting lot owners. Id. In the last case cited it was 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 fuhlie, 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;” citing Krueger v. Wis. Tel. Co. 106 Wis. 96, 81 N. W. 1041. Of course, the owner of land abutting on a street owns the fee to the center of the street, subject only to the public easement. Id. The statute, as it now stands, authorizes proceedings for condemnation by a street railway company having the requisite authority from the common council of the city wherein it is located. Sec. 1863a, Stats. 1898, as amended by ch. 306, Laws of 1899, as amended by ch. 465, Laws of 1901; Younkin v. Milwaukee L., H. & T. Co. 112 Wis. 19, 87 N. W. 861. It follows that the plaintiff is not entitled to have the ordinance nullified and set aside. [563] 2. But that does not give the defendant any right to construct its tracks, or place any burden on the plaintiff’s half of the street in front of his lot, without compensation, It appears from the complaint that the defendant has not resorted to condemnation proceedings, nor obtained any, consent or permission to construct its railway in front of the plaintiff’s premises. It is, moreover, alleged, in effect, that the defendant threatens to, and the plaintiff believes that it will, unless restrained by the court, enter upon the street in front of the plaintiff’s premises, and permanently lay and put down its railway trades, etc., and perpetually maintain the same, without compensation to the plaintiff. The plaintiff has the right to- compensation, as a condition precedent to the placing of such tracks, etc., ip. front of his premises. Ford v. C. & N. W. R. Co. 14 Wis. 609; Davis v. La Crosse & M. R. Co. 12 Wis. 16; Powers v. Bears, 12 Wis. 213; Shepardson v. M. & B. R. Co. 6 Wis. 605; Younkins v. Milwaukee L., H. & T. Co. 112 Wis. 20, 87 N. W. 861. The complaint is, in effect, that the defendant threatens to enter upon the plaintiff’s premises, and permanently occupy the same, under claim of right, without making any compensation therefor. This the defendant has no right to do. As indicated, the plaintiff has not waived any of his legal rights by giving consent or permission or otherwise. By the Court. — The order of the circuit court is reversed, and the cause is remanded with direction to overrule the demurrer, and for further proceedings according to law.