In re Eastern Wisconsin Railway & Light Co.

EeRwiN, J. It is undisputed that at the time of the commencement of this proceeding the petitioner was a railroad duly incorporated according to law, and authorized to carry freight and passengers over its road between the cities of Fond du Lac and Oshkosh, and was duly authorized to construct, operate, and maintain an electric interurban railroad between said cities, and avail itself of all the rights and privileges conferred by subd. 6, sec. 1828, Stats. 1898, and ch. 497, Laws of 1905. But it is strenuously maintained on the part of the appellant that the petitioner was not entitled to the appointment of commissioners in the instant proceeding, for the reasons: (1) That it had not shown a failure to agree with the appellant as to amount of compensation to be made or the points and manner of crossing; and (2) that no necessity had been shown for the crossing in question. 1. Subd. 6, sec. 1828, Stats. 1898, respecting railroad crossings, provides that a railroad corporation shall have power “to cross, intersect, join and unite its railroad with any railroad heretofore or hereafter constructed, at any point on its route and upon the grounds of such railroad corporation. . . . And every corporation whose railroad is or shall be hereafter intersected by any new railroad shall unite with the owners of such new railroad in forming such intersections and connections and grant the facilities aforesaid; and if the two corporations cannot agree upon the amount of compensation to be made therefor or the points and manner of such crossings and connections the same shall be ascertained by — 647 — commissioners to be appointed by the court, as is provided in this chapter in respect to acquiring title to real estate.” And ch. 497, Laws of 1905, mates all the provisions of the above subdivision apply to street and electric railways, and provides in effect that the commissioners shall have power to determine the place at and manner in which grade or other crossings shall be made, and, on an appeal from the determination and award to the circuit court, such court shall have power to review, revise, modify, or affirm such award both as to the amount of compensation and the manner of making such crossing, and may make such reasonable provisions as it shall deem necessary for public safety. It will be seen from the foregoing that no specific act is enjoined by the terms of the statute upon the company seeking to cross. It in express terms confers the power to cross, intersect, join, etc., and provides that “every corporation whose railroad is or shall be hereafter intersected by any new railroad shall unite with the owners of such new railroad, . . . and if the two corporations cannot agree upon the amount of compensation” and points of crossing, the same shall be ascertained by commissioners. Clearly, from the express language of the statute, no specific duty is imposed upon the company seeking the crossing respecting an effort to agree other than is imposed upon the old company. No act is required to be done and no positive duty in that regard enjoined. The duty imposed must rest alike upon both parties. This is clear from the provisions of the statute. It seems to be conceded by petitioner’s counsel that the statute contemplates that the two companies should make an effort to agree. The failure to agree is all that is necessary to allege in the petition. This fact was alleged and found by the court. Assuming the statute contemplates that both companies shall make an effort to agree we think it has been clearly shown that petitioner did all it was required to do. Negotiations were in progress between the representatives of the companies — 648 — respecting the matter from September until December, and a written notice served by petitioner about a month before the filing of the petition offering to make due and just compensation, and demanding that the appellant unite with the petitioner in forming an intersection and crossing, specifying the kind, place, and manner of the crossing desired, and before this notice was served several unsuccessful attempts bad been made to agree. No claim is made by tbe appellant that the two companies could or did ever agree. The main controversy in the court below was that there was no necessity for the crossing. It is contended by counsel for appellant that no offer of any amount was ever made as compensation; but clearly this was unnecessary, under the statute, upon any theory. When the demand was made to agree and pay just compensation, it was the duty of the appellant to meet the petitioner upon its proposition and endeavor in good faith to agree. The written proposition of petitioner, and the lapse of nearly a month without any response from appellant, was sufficient to justify the finding that the parties were un-. able to agree. 2 Lewis, Em. Dom. § 302. Without pursuing the subject further, we are satisfied that there was a bona fide attempt on the part of the petitioner to agree, and that the finding of the court below on that question is fully supported by the evidence. 2. The necessity for the crossing was determined hy the legislature. It was neither delegated to the court nor to the commissioners. The statute above referred to expressly empowers the new road to cross the tracks of the old, but leaves to the commissioners in the first instance the right to determine the points and manner of crossings and connections and the compensation to be made. As we understand counsel’s argument, they contend that the necessity for the crossing is to be determined by the court, and rely upon cases decided under the condemnation statutes, where the power to deter — 649 — mine the necessity is delegated by tbe legislature to the court. But it is very clear that these statutes contemplate two classes of cases, and the decisions bear out that construction; one where the power to take is expressly given, and the other where the necessity to take is left for the determination of the court. In the former the court has. nothing to do with determining the necessity; that is done by the legislature. Wis. C. R. Co. v. Cornell University, 52 Wis. 537, 8 N. W. 491; Wis. C. Co. v. Kneale, 79 Wis. 89, 48 N. W. 248; In re Lockport & B. R. Co. 77 N. Y. 557. The Wisconsin cases above cited do not construe the particular statute in question here, but make clear the distinction between cases where the determination of the necessity is delegated to the courts and cases where it is determined by the legislature. Moreover, the proceeding under subd. 6, sec. 1828, Stats. 1898, above cited, is not a proceeding for the condemnation of land for the construction of a railroad, but is simply a proceeding to effect a crossing or intersection, and the question of necessity in such proceeding is not one for determination by the court on the application for appointment of commissioners. In re Lockport & B. R. Co., supra. A careful examination of the two eases mainly relied upon by counsel for appellant (In re St. Paul & N. P. R. Co. 37 Minn. 164, 33 N. W. 701, and Seattle & M. R. Co. v. State, 7 Wash. 150, 34 Pac. 551) and the statutes of these states upon the subject convinces us that they are not controlling here. The Minnesota supreme court, in State ex rel. St. Paul, M. & M. R. Co. v. District Court, 35 Minn. 461, 29 N. W. 60, construed the statute as follows: “The district court is called upon to do three things: (1) Determine the necessity of the crossing; (2) prescribe where and how it shall be made; and (3) appoint commissioners.” Clearly this is not the construction which our crossing statute should receive. The authority to cross is plainly dele — 650 — gated to tbe railroad by tbe legislature, bence tbe determination of the necessity is not for tbe court on special proceeding for tbe appointment of commissioners. Tbe Washington statute is essentially different from ours, as will be seen from tbe following quotation therefrom: “And if tbe two corporations cannot agree upon tbe amount of compensation to be made therefor, or tbe points and manner of such crossings and connections, tbe same shall be ascertained and determined in tbe manner provided by law for tbe taking of lands and other property which shall be necessary for tbe construction of its road.” While, from tbe view we take of the case, it was wholly unnecessary for tbe lower court to determine tbe necessity to make tbe crossing, it did so determine, and its finding upon this point is fully supported by tbe evidence. Tbe record shows that tbe petitioner could not enter the city of Oshkosh over its proposed route without crossing tbe tracks of tbe appellant. ' Tbe offer to permit tbe petitioner to use certain portions of its track in entering tbe city, or tbe alleged contract relations, need not be considered, since they are no defense to this proceeding. Tbe petitioner was entitled to tbe appointment of commissioners to determine tbe question of a crossing on tbe route proposed, under tbe provisions of tbe statute, and whether some other crossing, track, or means of entrance were offered by tbe appellant, whether available or not, was wholly immaterial. The petitioner bad the right to construct and operate its road under its franchises in tbe manner provided by law over tbe route selected by its board of directors, and it owed a duty to tbe public to do so, which it could not abandon at pleasure. Tbe parties having failed to agree, and tbe petitioner being entitled as matter of right under tbe statute to the appointment of commissioners, tbe other questions discussed by counsel become immaterial and unnecessary to consider on this appeal. 'Whether petitioner was entitled to a grade crossing is — 651 — not before ns. Cb. 497, Laws of 1905, hereinbefore referred to, provides: • “The commissioners therein named shall have power to determine the place at and manner in which grade or other crossings shall be made, and on an appeal from the determination and awárd of such commissioners to the circuit court as provided by this chapter, in condemnation proceedings, such court shall have power to review, revise, modify, or affirm such award, both as to the amount of compensation therein provided, and as to the manner of making such crossing, and may make such reasonable provisions as it shall deem necessary for public safety.” It will be seen that on appeal from the determination and award to the circuit court a review may be had. It follows that the order below should be affirmed. By the Oourt. — The order appealed from is affirmed.