200 Wis. 170 | Wis. | 1929
Taking a broad view of the matter, no compelling reason appears why the city may not condemn the portion of the right of way involved. While a few courts have held that a municipality has no right to’ condemn railroad right of way longitudinally for street purposes, this court has never so ruled. If a proposed street extension may cross a railroad, it would seem that when necessity therefor exists it may be permitted to pass over a portion of a railroad right of way on which no track lies or struc
The appellant relies principally upon the general proposition that land devoted to one public purpose may not be condemned for another public- purpose in absence of express statutory authority therefor, and urges that there is no statute in Wisconsin conferring power on cities to take railway property for street purposes. This is too broad a statement of the rule. A more correct statement is that a city may not condemn such property unless there be express statutory authority or such authority appears by necessary implication; and the rule is subject to the further modification that such property may be taken if it can be taken without destroying or materially impairing the use of the property for the existing public use. 20 Corp. Jur. pp. 611, 612; 13 Ruling Case Law, p. 44. Under our statute the power exists by necessary implication; and here the company’s use of the property will not be destroyed or very much interfered with. The general power of cities to condemn land is expressed by sec. 32.02
Counsel for appellant urge that there is no necessity to take its property because other property might be condemned a short distance away to connect the two streets and that there is no necessity to connect the two streets anyway. But the jury has found that it is necessary to take appellant’s property for the particular purpose and their finding is not subject to review by the court, because the power to determine necessity is vested in the jury by the constitution, art. XI, sec. 2. While the determination of necessity in most situations is a legislative question (Wisconsin Water Co. v. Winans, 85 Wis. 26, 29, 54 N. W. 1003), our constitution confers that power upon a jury in condemnations by municipal corporations. The power in such cases is outside the legislative field. State ex rel. Allis v. Wiesner, 187 Wis. 384, 204 N. W. 589. The court has no more power to change a jury’s finding of necessity in this field than it has
Counsel urge that to take appellant’s property as proposed would violate the due-process clause of the federal constitution, and cites cases as supporting the proposition. But the rulings of these cases are based on the premise that the municipality had not the power to condemn. The premise not existing, the conclusion does not follow.
By the Court. — The order of the circuit court is affirmed.