Younkin v. Milwaukee Light, Heat & Traction Co.

Cassoday, C. Y. 1. It is conceded that the defendant was incorporated, created, and organized under and by virtue of ch. 86 and'secs. 1862 and‘1863 of ch. 87 of the Statutes of this state and the laws amendatory thereof and supplemental thereto, prior to the commencement of this action. It is also conceded that prior to that time, and pursuant to such statutes, the defendant obtained from the city of Wau-kesha, ordinances giving to it “the right to construct, maintain, and operate street railways” upon certain streets therein named in the city of Waukesha, including Lincoln avenue,, with single or double tracks. The ordinances required the defendant to construct and operate its railway line and tracks on the surface of the streets, and not to operate the same for-any other purpose than that of a passenger railway within the streets of the city of Waukesha, except that they were-thereby permitted to carry such personal effects as were usually -carried by passengers on street railways, and that the-rate of fare thereon should not exceed five cents for each passenger, except where cars are chartered at a special price or [482] for a special purpose. Sucb line of railway and tracts in tbe city appear to have been constructed as so prescribed by tbe city. In view of sucb facts it is very obvious tbat under tbe decisions of tbis court tbe defendant had tbe right to maintain its tracks and railway on Lincoln avenue for tbe purpose of doing a legitimate street-railway business without making compensation to any of tbe plaintiffs as abutting lot owners. Thus it appears tbat tbe decisions of tbis court culminating in La Crosse City R. Co. v. Higbee, 107 Wis. 389, 83 N. W. 701, 51 L. R. A. 923, are to tbe effect tbat sucb electric street railways, constructed and operated as so prescribed, are nothing more than an improved method of using tbe street to effect its original design. And so it was there held: “A railroad constructed on tbe grade of a street, and operated so as not to materially interfere with tbe common use thereof for public travel by ordinary modes, or with private rights of abutting landowners, and for tbe purpose of transporting persons from place to place on sucb street at their reasonable convenience, is not an additional burden on the fee thereof. A railroad satisfies tbe above essentials, regardless of tbe motive' power used, or bow it is applied, if it be strictly a street railroad for tbe carriage of passengers on tbe street, taking them on and discharging them at reasonable points, and it be so constructed and operated as not to materially interfere with the ordinary modes of using tbe street for public travel or with private rights.” 2. A very different question, however, is here presented, as appears from tbe facts stated. It is undisputed tbat the defendant was incorporated, created, and organized as stated, and before tbe commencement of tbis action owned and operated a street railway from tbe city of Milwaukee westerly through the country to tbe easterly limits of tbe city of Waukesha, where it enters Lincoln avenue, and runs thence in a westerly direction through tbe city of Waukesha, and thence through tbe country in a northwesterly direction for [483] a distance of sis or.seven miles to Waukesha Beach, a summer resort on the shore of Pewaukee Lake. Under the repeated decisions of this court such street railroad upon the public highway between the cities of Milwaukee and Wau-kesha has been held to be an additional burden, which entitled the abutting landowners to compensation therefor. Chicago & N. W. R. Co. v. Milwaukee R. & K. E. R. Co. 95 Wis. 561, 70 N. W. 678, 37 L. R. A. 856; Zehren v. Milwaukee E. R. & L. Co. 99 Wis. 83, 74 N. W. 538, 41 L. R. A. 575. In this last case the question was very carefully -considered, and it was expressly held: “An electric railway for the carnage of passengers between cities, which is constructed and operated upon a country highway, is an additional burden upon such highway, .and its proprietors cannot, even with the permission of the town authorities, granted for the sole purpose of enabling them to do so, cut down the highway so as to seriously impair the rights of an abutting owner to access to his lot, without his consent, or the payment- of compensation to him.” See, also, Krueger v. Wis. Tel Co. 106 Wis. 96, 103-107, 81 N. W. 1041; Linden, L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 511-513, 83 N. W. 851; Allen v. Clausen, 114 Wis. 244, 249, 90 N. W. 181. Of course, the same is true as to the defendant’s line of railway from the city of Waukesha to Waukesha Beach. It is conceded that the rule stated is applicable to the whole line from the city of Milwaukee to Waukesha Beach, except within the limits of the city of Waukesha. The defendant claims the right to run its trains and cars from the city of Milwaukee directly through the city of Waukesha and to Waukesha Beach. In doing so it is conceded that, while such trains or cars are interurban, they do cast an additional burden on the lands of abutting owners, which entitles them to compensation; but it is claimed that the moment such trains or cars pass into the city of Waukesha they cease to cast any such additional burden upon the lands of such abut [484] ting owner's. And yet sncb trains or cars may be loaded with-tbrongb passengers. Tlie only difference is that while in the city of Waukesha such trains or cars, in obedience to requirements, stop at street'crossings, whereas in the country they only stop when convenient, or at points remote from each other. Counsel for the defendant argues that as a train or cars with passengers from Milwaukee might, at the city limits of Waukesha, change from such interurban cars to-regular street cars, and then at the "westerly limits of the city again change into interurban cars, that, therefore, it- is-substantially the same as though the interurban train or cars should continue with its passengers directly through the city; especially as the ordinance expressly authorized the street railway to connect with the interurban railway. While such argument may be plausible, yet it is really begging the question. It might be argued on the same theory that a commercial railway passenger train, with the permission of the city, might be run over the street railway tracks without compensation to the abutting lot owners. We must hold that the running of such interurban trains and cars over the street railway tracks upon Lincoln avenue was an additional burden upon the lands of the plaintiffs as such abutting lot owners. 3. Counsel for the defendant contend that the question is-not properly before us on this appeal; that, if the running" of such through cars on Lincoln avenue was improper, then that it was merely an abuse of the defendant’s street railway franchise; and that, “if the plaintiffs have any remedy, it is to institute condemnation proceedings.” But it was held on the former appeal: “Prior to the enactment of ch. 465, Laws of 1901, street railway companies had no right to condemn land in the streets of cities or villages; and where a street railway was constructed without authority in such a street the abutting owners might resort to the ordinary actions for relief.” [485] Younkin v. Milwaukee L., H. & T. Co. 112 Wis. 15, 19, 87 N. W. 861. Tbe result is that the only adequate remedy the plaintiffs had at the time of the commencement of this action was to restrain the defendant from casting such additional burden upon their lands as such abutting lot owners; and such right of action was common to all of them. Id. The facts were in issue, and all appear in the record, and are undisputed. The mere fact that the plaintiffs have prayed for relief to which they are not entitled is no ground for refusing to them the relief to which they are entitled. This decision must be regarded as limited to the condition of things "at the time this action was commenced. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded, with directions to enter .judgment in favor of the plaintiffs and against the defendant as indicated in this opinion.