In re Plowright

SiebeoKeb, J. The right of any street or interurban railway company to condemn the right to use city or village streets, alleys, or viaducts was not given by law until the •adoption of ch. 465, Laws of 1901 (sec. 1863a, Stats.), which grants the right upon the express condition that “. . . the ■use of such street, alley, or viaduct shall first be granted to such street or electric railway company by a franchise duly passed by the board of trustees or common council of such village or city.” The decision in the case of Beloit, D. L. & J. R. Co. v. Macloon, 136 Wis. 218, 116 N. W. 897, determined that appellant had no right as an interurban railway to institute condemnation proceedings for the use of a street unless it first had obtained a grant from the common council of the city authorizing such use of the street. The inquiry therefore in the case is: When did the appellant obtain the right to condemn the use of the street for an interurban railway business ? [516] Prior to 1907, under the franchises it had obtained from the city of Janesville, it was given authority to operate a street railway for the transportation of passengers in the city. The conduct of this business, as held in tire Macloon Case, required no condemnation of the use of the street, and hence no right to condemn existed either against or in favor of respondent. It is obvious from the context of the ordinances passed prior to 1907, which' granted the appellant the right to operate its railway business over the city streets, tíiat appellant was authorized merely to conduct a street railway business, and that no authority to conduct an interurban railway business was conferred thereby. Such' authority was unquestionably conferred by the ordinance of July 20, 1908. Whether the ordinance of January 7, 1907, conferred such authority it is not necessary to decide. If authority to do an interurban railway business is thereby conferred, still the period of limitation barring actions, for condemnation under secj' 4222, Stats. (1898), has not run. Under the circumstances the right to condemn did not exist prior to the passage of these ordinances and no right to proceed to condemn could have accrued. Of course, petitioner had no power to proceed under sec. 1852, Stats. (1898), until the railway company had delayed or omitted to institute and conduct the proceedings to a conclusion. Under the facts we deem appellant’s delay in instituting the proceeding to condemn since the right accrued was sufficient to warrant petitioner’s proceeding in the matter. The order appointing commissioners to appraise petitioner’s damages was proper. By the Court. — The order is affirmed.