95 Wis. 561 | Wis. | 1897
Milwaukee avenue, at South Milwaukee, runs east and west, and the plaintiff’s railroad tracks cross it nearly at right angles. Its depot grounds at that place extend, east from such tracks along the south side of the avenue, and abutting thereon, for a distance of 200 feet. On the north side of the avenue, and abutting thereon, and immediately east of said tracks, the plaintiff owns a strip of land or right of wray fifty feet in width. The answer expressly admits “ that the plaintiff is the owner of the lands ” so'described, “ within said public street, and to the center line thereof,” on both sides, “subject to the easement vested in the public.” This admission is in accordance with the well-settled rule of law in this state to the effect that the owner of land abutting upon a public street or highway has the legal title to the center of such street or highway, sub
Such being the facts and the law in this case, it is obvious that the adjudication of cases arising in certain states and cities where the title to the land within the limits of public streets and highways is vested in the state or the public can have no bearing upon the question here involved, since the title to the land of such abutting owner in such states and cities terminates at the outer lines of the street or highway; and hence such abutting owner in such states and cities can only have, in addition to such public easement, a right of ingress and egress to and from his premises, or, as it is sometimes called, “ an easement of access ” to and from his premises. Id. The question presented, therefore, is whether the construction of the defendant’s track and operating its street railway, as proposed, across tie plaintiff’s tracks, and upon and over the plaintiff’s lands so within Milwaukee avenue, would be merely an exercise of the public easement previously acquired by the construction of that avenue, or an additional servitude and burden, for which the plaintiff, as such abutting owner, is entitled to compensation. In Ford v. C. & N. W. R. Co. 14 Wis. 609, 616; S. C. 80 Am. Dec. 791, DixoN, O. J., speaking for' the court, and following New York and Massachusetts cases, among other things, in
Such are the settled rules of law applicable to ordinary steam railways constructed, maintained, and operated in public streets for the carriage of passengers and freight.The question recurs whether the proposed street railway comes within the principles of law thus stated, or whether it will be a mere exercise of the easement acquired by the public when Milwaukee avenue was first opened to public use. In Hobart v. Milwaukee City R. Co. 27 Wis. 194; S. C. 9 Am. Rep. 461, it was held that “The construction and operation of a horse railway in the public streets of a city, by authority from the city government, is not a new burden imposed upon the owners of the fee of the land, and they are not entitled to a compensation therefor, except where some private right of such an owner (as his free access to his own laud or buildings) has been materially impaired thereby.” The learned chief justice, who wrote the opinion of the court in that case, after showing that different courts and different judges of the same court have disagreed as to whether the establishment and running of a horse railroad in a public street was an imposition of an additional burden upon the land of the abutting owners, reaches the conclusion “that the laying down of the rails and running of the cars in the manner shown by this case is not the appropriation of the street to a new use, requiring compensation to be made therefor to the plaintiff, unless he has shown that he will suffer some private or peculiar injury by being deprived of that free access to his premises which otherwise he would continue to have and enjoy.” In that case the vehicles were drawn by horses, the same as ordinary carriages,- — -the only difference being in the size and shape of the vehicles, and the fact that in the one case they were confined to the fixed
As indicated in. the statement made, the part of the defendant’s proposed railway in question is to be a part of its connecting line of railway from the city of Kenosha to the city of Milwaukee; and, as expressed in the defendant’s charter, -it intends to use said railway, when constructed, for the carriage and transportation of passengers, merchandise, personal baggage, mail, and express matter, in cars and .trains propelled by locomotive engines and electricity and ■other power; but with no provision for condemning lands ■or acquiring the right of way, nor for joining and uniting with other railways in forming crossings, intersections, and ■connections, nor in adjusting differences in case of disagreement, as required by statute in the case of steam railways. S. & B. Ann. Stats, sec. 1828, subd. 6. Such a railway is not a street railway, within the ruling of the Hobart Case, nor as generally understood. Upon what principle of law can it be said that before the plaintiff can construct its railway across or upon a public street or highway at grade it must Riake compensation to, or acquire the consent of, the abutting landowner, and yet that the defendant can do the same thing without such compensation or consent? The mere difference in motive power would seem to be insufficient. Besides, there is certainly far more difference in the use of mere horse power, as in Hobart v. Milwaukee City R. Co., supra, and electric power, as in the case of the defendant, than there is in the case of electricity and steam. A mere street railway for carrying '•'■passengers only,” as the statute prescribed under which the Hobart Oase was decided, would greatly relieve the streets of a city or village from travel, and hence would, to that extent, facilitate travel on foot or by carriage. Such street railways, under the decision in that case, do not necessarily constitute an additional
By the Court.— The order of the circuit court is reversed, .and the cause is remanded with direction to grant the temporary injunction, and for further proceedings according to law.