187 Wis. 552 | Wis. | 1925
The following opinion was filed May 12, 1925:
The appellant Blair contends that the judgment was erroneously entered for four reasons:
First, because the petitioner was permitted to determine the necessity for the taking. The claim is made that such
Second, it is claimed that, since the petitioner once located this line by a survey, it cannot change its mind after such survey is made and relocate it in another place. This position is wholly untenable. The statute gives the petitioner the right to locate the line. Such right includes the right to change its mind with reference to where it shall go. A preliminary survey or a tentative selection of the line may for many reasons have to be abandoned and the line put in another place. The statute permits a petitioner to refuse to take property even after condemnation proceedings have been completed and the damages assessed. Sec. 32.19. This indicates clearly that the petitioner has an option as to
The third objection is that the petitioner could acquire a right of way only thirty-two feet in width. This is claimed to be so because of the provision of sec. 193.11 which provides that a street electric railway corporation may acquire a right of way not exceeding two rods in width for the purpose of conveying or transporting electric current from the- power house where the same is generated to the electric or street railway system operated thereby and for the purposes of furnishing light, heat, and power for public purposes. This applies only to street and electric railways and to the line from the power house to its, system. It does not control the width of the right of way of the petitioner in this case, which is constructing a large power line for the purpose of furnishing light, heat, and power to the public generally. The statute governing the petition in this case is sec. 32.02, which does not limit the width of the right of way for the purpose here involved. It is evident that these large power lines could not successfully operate upon a width of only thirty-two feet. Their towers are high, have a wide base, large overhanging arms on which the wires are strung, and for their successful and safe operation, especially through woods, they require a much wider right of way than thirty-two feet. For this reason the statute has placed no limit upon the width of the right of way.
The fourth objection is that the petitioner has no right to cut down trees to provide a sufficient clearance for its wires. This objection was decided adversely to the appellant in Brown v. Wisconsin-Minnesota L. & P. Co. 170 Wis. 288, 174 N. W. 903, where it was held that where an electric line owned a right of way it had the right to make a reasonable clearance for its wires by the cutting or trimming of trees. To hold otherwise would be to jeopardize the efficient operation of the line and perhaps to subject
The objection of the appellant Chafin is that it appears from the evidence that the petitioner first located its line over the property of Blair; that Mr. Blair instituted proceedings for the purpose of preventing its location over his land, and that in the settlement of such proceedings the petitioner was paid a substantial sum, in consideration of which it agreed not to locate its line over the land of the appellant Blair as contemplated. The answer of the petitioner is that it was under a public necessity to expeditiously locate and construct its line because the public needed it. It appeared that Mr. Blair was a man of wealth and that he had fully determined to obstruct and to prevent if possible the location of the line along the survey first made over his land; that in order to end such litigation and to enable the petitioner to expeditiously locate and construct its line it did agree with Blair not to locate it as first surveyed. Had it been located as first surveyed it would not have crossed the land of Mr. Chafin. So the question presented is whether a petitioner condemning land for a right of. way for an electric line can agree with one landowner for a consideration not to locate its line over his land as first contemplated and to relocate it. This question is not free from difficulty. If such an agreement is made without any valid reason and for the purpose of favoring one landowner as against another, it is quite probable that it might not be held to be valid and lawful. But where, as here, it clearly appears that in order to locate its line over Mr. Blair’s land as first surveyed there would have to be a long litigation, and where as here it was essential that the line should be expeditiously located and built for the public interest, it cannot be said that such a settlement of the litigation can be complained of
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on October 20, 1925.