140 Wis. 334 | Wis. | 1909
Tbe first contention made by appellant is that tbe new statute, enacted by ch. 120, Laws of 1907, added as sec. 1299h — 1, Stats., does not require it to plank tbe crossing of tbe new street. That act provides:
“Whenever any highway in any town or incorporated village, without tbe limits.of any incorporated city, shall extend upon, over or across tbe tracks or right of way of any railway •company, such railway company shall, at its own expense, construct, grade and maintain in safe condition for public travel, tbe portion of such highway or crossing extending upon, over or across tbe tracks or right of way of such railway , company.”
Does this include planking the surface between and adjoining the traeks? The affirmative was quite directly declared in Chicago, M. & St. P. R. Co. v. Milwaukee, 97 Wis. 418, 431, 435, 72 N. W. 1118; and, while tbe question was not necessarily .involved in that case, tbe reasons there presented still appear to us cogent and conclusive. Tbe portion of tbe highway at the place of intersection with tbe traeks cannot be so constructed and maintained' as to be in “safe condition for public travel” without such planking, or some equivalent therefor, as to adjust the surface substantially to a level with the tops of the rails. Of course this might be accomplished by tbe use of cement or concrete, and perhaps in some other way, but at expense probably as much or greater than tbe planking, and we take tbe practical question here involved to be whether planking or some equivalent is by tbe statute imposed upon the company. Without it, tbe crossing would be safe neither for the public travel upon tbe highway
2. A further contention of the appellant is that, if it is required by law to incur this expense as a consequence of the condemnation of a portion of its right of way for use as a highway, such expense is an impairment of the value of its property, and therefore should be compensated in the condemnation proceedings, a contention which, if the condemnation were for another railroad, finds support in State ex rel. Northern Pac. R. Co. v. Railroad Commission, ante, p. 145, 121 N. W. 919, decided so recently that the opinion was probably not brought to the attention of the circuit judge in the instant case. In that opinion, however, the distinction is clearly drawn between a condemnation of th.e lands of one railroad for the use of another and a condemnation for the uses of a public highway, with reference to those burdens of expense and maintenance in compliance with police regulations, resulting from the new use of that portion of plaintiff’s right of .way taken for the crossing. In the case of highway, those burdens fall purely and solely for public protection. In the ease of condemnation for a new railroad, elements of private profit result from the condemnation, although they are not the sole reason for it, and therefore it has been held, as is declared in State ex rel. Northern Pac. R. Co. v. Railroad Commission, supra, that those expenses, so far as they are cast upon the plaintiff by the new crossing, should be compensated by the condemnor, if another railroad company, while
3. Upon the question whether the requirement of sec. 129 97i — 1, Stats., is a legitimate exercise of police power justified by considerations of protection of the safety 0f the public, Chicago, M. & St. P. R. Co. v. Milwaukee, supra, is final. As there well said: “There is no distinction in principle between the planking of the crossing and the maintenance of crossing signs, warning posts, cattle-guards, wing fences, crossing gates,” and other things there mentioned. The suggestion of a distinction because the planking or its equivalent is really a part of the construction of the railroad is an immaterial one. Obviously it is no more so than the construction of cattle-guards required by sec. 1810, Stats. (1898), and sustained as a police regulation in Chicago, M. & St. P. R. Co. v. Milwaukee, supra, and cases there cited.
By the Court. — Judgment affirmed
