Chicago & Northwestern Railway Co. v. Fox River Electric Railway & Power Co.

Siebeckee, J. The respondent, as purchaser oí the property, by contract with the McCartney Street Railway & Power Company of August 21, 1899, and a conveyance of it on Oc [187] tober 20, 1899, did not expressly undertake to perforin the conditions of the agreement upon which the appellant bases its right to recover in this action. The agreement of sale and the conveyance were in terms of personal obligations, binding upon the parties only. They express nothing to indicate that the parties intended respondent should be required to pay the expense of a flagman provided for in the original agreement between appellant and David McCartney, the original builder and operator of the street railway. Despondent apparently sought to avoid assuming any of the obligations which were cast upon David McCartney for the maintenance of this crossing. It was specifically agreed that the purchase thus made ■was to include all the rails, ties, wire, poles, cars, switches, turnouts, curves, and other personal property constituting the equipment of this street railway, but stipulating that the transfer thus made was “not including the franchises, leases, contracts, or powerhouse machinery.” Then, again, the agreement conveys nothing but the personal property therein described. The sale of this personal property to respondent could not transfer any burden, duty, or obligation imposed on McCartney as a party to the contract, unless it assumed such burden, duty, or obligation as assignee. That respondent was not the assignee sufficiently appears. Can it be said that it was the successor of David McCartney in operating its street railway system over this crossing ? This view is met with the unsurmountable objection that McCartney had no valid franchise, nor any right of possession to the .street, and that no “franchises, leases, contracts, or powerhouse machinery” were attempted to be transferred and conveyed to respondent. The respondent had a franchise from-the city to operate and maintain a street railway over and upon the streets of the city at the place of crossing. The right to possession of the street under its own franchise and to maintain a street railway system is unquestioned. Its purchase [188] of the personal property of the former company in place on the street, using and occupying the same place, while operating its street railway system, under its franchise, is no legal basis for holding it assumed the former owner’s right of occupancy in the street at the place of crossing, and thereby had cast upon it the burden of paying the expense of maintaining this crossing. Menasha v. M. & N. R. Co. 52 Wis. 414, 9 N. W. 396; Wabash, St. L. & P. R. Co. v. Ham, 114 U. S. 587, 5 Sup. Ct. 1081; Wright v. M. & St. P. R. Co. 25 Wis. 46. The appellant asserts that the agreement is one which in legal contemplation must hare been intended by the parties to be perpetual, and its benefits attach to the fee of the land ■over which the street railway is constructed and operated. The contract is primarily concerned as to operating the two railroad properties, where both rightfully pass over this place in a public street. The fact that the steam and street railways occupy the same place on the land emphasizes the legal result that these railways on the land are entirely distinct and independent properties — a transfer of either or both of the railway properties would in no way affect the interest in the land over which they pass, nor would a conveyance of the land necessarily affect their right to the use of this place upon it. The agreements embraced in the original contract were in their nature personal obligations, pertaining to the conduct of the respective railway enterprises, and did not attempt to grant any rights to the use of the real estate to McCartney which were not an incident to'a valid franchise for operating a street railway. The right to use this land at the crossing does not arise out of this contract, nor can it be said that such use by the two railways is an interest in or annexed to the realty, but it is in its effect collateral and independent of the land as regards the tenure and enjoyment thereof. Hartung v. Witte, 59 Wis. 285, 18 N. W. 175; Menasha v. M. & N. R. Co., supra; Kettle River R. Co. v. E. R. Co. 41 Minn. [189] 461, 43 N. W. 329; Wiggins F. Co. v. O. & M. R. Co. 94 Ill. 83; Morse v. Garner, 1 Strob. 514. The foregoing conclusion is based on the assumption that the contract between appellant and David McCartney was valid. This is challenged by respondent. The view we have-taken of the case makes it unnecessary to discuss this question. We must hold that the contract in question was not binding on respondent. By the Court. — The judgment of the circuit court is affirmed.