136 Wis. 218 | Wis. | 1908
The following opinion was filed June 5, 1908:
Limited powers of condemnation have been given to street and electric railway companies by our statutes (sec. 1863a, Stats.: Supp. 1906), but with the proviso that such powers shall not apply to any city or village street, alley, or viaduct unless the use thereof shall first be granted-to such company by a franchise duly passed by the governing body of the city or village. By sec. 940b, Stats. (1898), it is provided that no franchise shall be granted by
Tbe appellant strongly urges that tbe respondents cannot question in this proceeding tbe validity of tbe franchise on •account of mere irregularities in its passage, because such question can only be raised at tbe suit of tbe state; and in support of this contention tbe appellant relies upon the case of Stedman v. Berlin, 97 Wis. 505, 73 N. W. 57, and tbe cases which have followed and reaffirmed tbe doctrine there laid down. The appellant further contends that in any event tbe application was entirely sufficient under tbe statute, even if tbe question be one which can be raised in this proceeding. Tbe arguments in support of these propositions are persuasively made, but we find it unnecessary to consider them because of tbe conclusions reached upon another and more fundamental question which is fairly presented by the record, but to which little attention has been paid. Tbe petitioner is authorized by its articles of incorporation to build and operate interurban railways as well as purely urban or •city railways. It is in fact operating an interurban railway business upon the streets in question, and, while its petition
It is well understood that this court early held that the ordinary street railroad carrying passengers alone did not constitute an additional burden on the fee of the street, and hence that it could be built and operated without condemning the rights of adjoining property owners. When, however, in the natural course of events, the interurban railway came into existence by a process of evolution and commenced to carry passengers from city -to city, it was at once held that the use of highways for such purposes was an additional burden, for which the adjoining property owner must be compensated. Chicago & N. W. R. Co. v. R. & K. E. R. Co. 95 Wis. 561, 70 N. W. 678; Zehren v. M. E. R. & L. Co. 99 Wis. 83, 74 N. W. 538.
The course of the legislative evolution of the interurban railway as a corporation distinct from the true city street railway corporation was quite fully traced in the case of Milwaukee L., H. & T. Co. v. M. N. R. Co. 132 Wis. 313,
Now the simple question is: What is the character of “the use” of a street which must first be granted to an interurban company before it can condemn? In view of the history of the legislation, and the fact that the law had always required that the consent which an interurban company must obtain from the local governing bodies was the consent to the use of a street or highway for interurban purposes, must it not be held that "the use” referred to in the last-named act was the same use consent to which the law had always required, namely, “the use” for interurban purposes, and this alone? It seems to us that this question must be answered in the affirmative. The fact that the same company may have been granted “the use” of the street for purely city street railway purposes cannot logically be held to meet the requirement that “the use” of the street must first be granted by the public authorities before condemnation for interurban purposes can be had. As well might it be claimed that a grant of “the use” of the street for the erection of poles and carrying of wires for an electric lighting system would satisfy the requirement.
The question has not been met before in this court. It doubtless might have been raised in the cases of Abbott v. Milwaukee L., H. & T. Co. 126 Wis. 634, 106 N. W. 523, and Marsh v. Milwaukee L., H. & T. Co. 134 Wis. 384, 114 N. W. 804, but in both these cases the right to condemn was not challenged, and hence the question before us in the pres
The necessary conclusion is that the judgment below was right. If, as alleged in the appellant’s petition, this proceeding is brought to condemn the right to maintain and operate a city street railway only, then it was rightly dismissed because no such condemnation is necessary. If, on the other hand, it is brought to condemn the right to maintain and operate an interurban railway, it was rightly dismissed because the petitioner had never, acquired from the common council the right to use the street for that purpose.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied September 29, 1908.