State ex rel. Milwaukee Electric Railway & Light Co. v. Braman

RosenberRY, J. In its effort to comply with the orders of the railroad commission requiring it to make the imT provements described in the statement of facts, the relator is met by the refusal of the defendant to permit the work to be done. It is the contention of the defendant that the relator has no franchise for the construction of turnouts, sidetracks, connections, or cross-overs on Twenty-second avenue. This contention is based upon the following facts: The material part of the ordinance granting the franchise under which the relator claims is sec. 4 of the ordinance of January 2, 1900, which contains the following provision: “Provided further, that in case of the extension of the city limits in the future, then said railway company is hereby authorized and obligated to make extension of any of its lines now or hereafter reaching the city limits as they now exist to the said city limits when so extended, . . . and when any such extension shall be made, all and singular the provisions of this ordinance relating to the operation thereof shall apply the same as though the provisions of this ordinance were made a part of the ordinance requiring such extension.” It is the contention of the defendant that under the provisions of this ordinance, when the relator extended its line beyond the old city limits, the right to construct “all neces [136] sary and convenient tracks, turnouts, sidetracks, connections, cross-overs, and switches” was not included because of the fact that the word operation is used, and no word relating to the construction of the line is used in connection with it, and therefore only that part of the ordinance which relates to the operation of the line is applicable. We think this is entirely too strict a construction to place upon the language of this ordinance, and that when under an ordinance adopted pursuant to the provisions of sec. 4 the relator was compelled to extend its lines in accordance with the provisions of sec. 4, the right to construct the necessary turnouts, sidetracks, connections, cross-overs, curves, and switches passed as an incident. Brooklyn Heights R. Co. v. Brooklyn, 152 N. Y. 244, 46 N. E. 509; Detroit Citizens’ St. R. Co. v. Board of Public Works, 126 Mich. 554, 85 N. W. 1072. .The franchise situation at the intersection of Twenty-seventh street (a continuation of Twenty-second avenue) and Hopkins road is substantially as follows: In 1908 the company accepted a franchise to build a double track to Keefe avenue, which was then the northerly limit of the city. Since that time the city limits have been extended north of Keefe avenue on the easterly side of Twenty-seventh street, but on the westerly side of Twenty-seventh street the city limits are bounded by the lines of Keefe avenue, the east half of Twenty-seventh street above Keefe avenue being, therefore, within the city limits, and the west half being without the city limits." On behalf of the defendant it is admitted that both of the improvements in question are necessary and reasonable and should be made. The contention of the defendant is that, because the relator accepted a franchise to construct a double track on Twenty-seventh street to Keefe avenue, it cannot construct a single track north of Keefe avenue, although admittedly the west side of Twenty-seventh street is not within the city limits, and the common council of the [137] city of Milwaukee could not grant a franchise therefor. By sec. 1 of the ordinance of January 2, 1900, the relator is granted “the right, permission and authority to lay, construct, maintain and operate a single or double track for street railways, for the carrying of passengers, with all necessary and convenient tracks, turnouts, sidetracks, connections, cross-overs, and switches,” on the streets described in sec. 4. We have already called attention to the fact that, by the proyision of sec. 4, in case of extension of the city limits the relator was required to make an extension of any of its lines reaching the city limits as they had existed, ,to the city limits as extended. We consider this provision of the ordinance applicable here, and the mere fact that a double track cannot be constructed under the franchise does not prevent its operating in that part of the streets of which the city of Milwaukee has jurisdiction and authorizes a single track to be constructed therein. While ordinances granting franchises to utilities are in some cases to be strictly construed, they are not to be so construed as to defeat the purpose for which the grant is made. It is contended, however, that a franchise to construct street-car tracks in a street, together with switch tracks, sidetracks, cross-overs, curves, and connections, does not include the right to cut the curb and lay constructions in the sidewalk, because in Wisconsin, and particularly in Milwaukee, a sidewalk is not included in the words “street, alley, or part thereof.” Abbot v. Milwaukee, 148 Wis. 26, 134 N. W. 137. Abbot v. Milwaukee was a case involving the right of reassessment for sidewalk improvements made by the city, and it was held that while in its general sense “street” includes sidewalk areas, the words “paving or repaving any street or alley or part thereof” as used in sec. 12KM of the Statutes was not intended to cover, and did not cover, sidewalk improvements. Such holding has no application to the facts in this case. [138] The city of Milwaukee is authorized by sec. 1862, Stats., to grant franchises for the use of public streets “for the purpose of laying single or double tracks and running cars thereon for the carriage of freight and passengers, . . . with all necessary curves, turnouts, switches, and other conveniences.” We are of the opinion that the granting of a franchise by the city of Milwaukee to lay tracks necessarily includes as an incident to the grant the right to connect the tracks by means of necessary curves and switches, including the right to cut a sidewalk where that is reasonably necessary for the enjoyment of the right granted. It is the contention of the defendant that, before such structures are erected in a street, the plan therefor should be approved by the common council and made subject to such conditions as the common council may determine - in the interest of the public safety. We find no such requirement, and our attention is called to none. By the Court. — Judgment affirmed.