168 Wis. 534 | Wis. | 1919
Lead Opinion
The claim is made.that the railway company is liable for the cost of maintenance and repair of the viaduct. This presents the question whether the viaduct constitutes an alteration or a changed way of Muskego avenue, which the defendant’s railroads cross, or whether it is a new way. The referee and the trial court held that the viaduct is a new way and that the railway company is not obligated to repair and maintain it as a railroad crossing. The city assails this conclusion upon the grounds that the facts and circumstances disclosed by the evidence clearly show that the viaduct constitutes in fact and law a substituted crossing for defendant’s railroad crossings over Muskego avenue and hence is not a new way. The physical situation is shown in detail by the facts found by the referee and is set forth in the foregoing statement. It appears that Muskego avenue is an old established highway crossing the Menominee valley and forms the connecting thoroughfare between the city lying on the north of the valley and the portion lying on the south. It crossed the valley in a northeasterly and southwesterly direction, and within its termini was crossed by the north and south Menominee canal bridges, by defendant’s yard tracks, industrial and main-line tracks, shown in the detailed statement made above. Prior to 1891 the city and the railway company’s representatives had frequent negotiations concerning the public need to make travel across the valley safer and more convenient, but
“That large and populous cities need better, safer, and more expensive highways and bridges for the accommodation of their teeming populations than small communities no one will deny. The simple rural highway and the inexpensive bridge may be ample for all purposes in the village or small city, while for the congested conditions of the great city the asphalt pavement and the broad and expensive bascule bridge may be not only proper, but absolutely essential to human safety.”
It is manifest that the city of Milwaukee acted under ch. 122, Laws 1891, in building the viaduct in question. The provisions of sec. 31, art. IV, Const., as they stood at the time this chapter was enacted did not prohibit legislation granting special corporate power or privileges tO' cities or to amend their charters, and hence no objection exists against the provisions of this act as violative of the constitutional provisions. An inspection of the location and nature of the structure and the uses and purposes for which it was .built shows that the structure is not a part of nor an alteration of Muskego avenue. Its southern terminus is at the point of intersection of Muskego avenue and South Pierce streets on the hill on the south side of the valley; its course thence is wholly outside of Muskego' avenue, and crosses the valley on a line not occupied as a street to a northern terminus, namely, the south end of Sixteenth street, a distance of 4,100 feet, and its northern terminus is 1,300 feet away from the
The right of this legislative control of this subject is pertinent in ascertaining the legislative intent embodied in ch. 122, Laws 1891. An examination of the provisions of the act, in the light of the condition of the public uses of Mus-kego avenue and the public necessity of improving the'facilities for travel over Menominee valley, clearly indicates that the legislature was impressed that public convenience and necessity 'required additional facilities for travel across Menominee valley and intended that the city should provide for this need by building the additional street over the new viaduct, and under the state’s supervising power the city was authorized to use for this purpose whatever sum of money
It is considered that Muskego avenue was not altered by the construction of the viaduct upon the lines specified in ch. 122, Laws 1891; that the viaduct constitutes a new way or street across the Menominee valley; and that the railway company was not obligated under the statutes, the common law, or the city charter to construct, maintain, or repair the viaduct spanning its right of way. These conclusions are decisive of the case and elaboration of other points argued is not required.
By the Court. — The judgment appealed from is affirmed.
Dissenting Opinion
(dissenting). The amount involved in the present case is considerable, but the principle involved is of far greater importance. I am so strongly convinced that the public burdens are wrongly distributed by the judgment that I feel it a duty to state the grounds on which that conviction is based.
The fundamental propositions are these: (1) The law contemplates that a railway company crossing a highway shall not impair its usefulness and shall, in case the crossing is thereby made dangerous to' life or an obstruction to travel, construct and forever maintain such substituted way or ways as may be best calculated to restore the safety and convenience of the original way. (2) The viaduct in question here is in part (the extent- of which part is easily ascertainable) a substituted way for the Muskego avenue crossing which was made dangerous by the defendant’s tracks, and hence the defendant should rightfully pay its proportionate share of the cost of repairs of the viaduct.
There will probably be little disagreement as to the first proposition and Í shall spend little time on it. Since 1872 the statutes of this state have provided that a railroad company constructing a railroad across a street shall restore the
This requirement is, however, but a statutory 'recognition of a common-law principle which existed long before the passage of our statute. State ex rel. Minneapolis v. St. P., M. & M. R. Co. 35 Minn. 131, 28 N. W. 3; State ex rel. Minneapolis v. St. P., M. & M. R. Co. 98 Minn. 380, 108 N. W. 261 and cases cited in opinion. '-This-court has-approved the doctrine to» the fullest extent. Superior v. Roemer, 154 Wis. 345 (141 N. W. 250) on p. 356.
The charter of the city of Milwaukee (ch. 184, Laws 1874, sub. 48, sec. 3, subch. IV) recognized the principle by giving the city council power “to require railroad companies to construct and maintain at their own expense, such bridges, viaducts, tunnels, or other conveniences, at public railroad crossings, as the common council may deem necessary.” Doubtless similar power is conferred by most of the city charters of the state. It is to- be found in the general city charter — sub. (51), sec. 925 — 52, Stats. — and in the special charter of the city of Superior.
The authorities which hold that a city cannot contract with a railroad company to keep such a structure in repair and thus relieve the railroad company from its duty because there is no' consideration for such a contract, are numerous and decisive. Furthermore, the question has been directly decided by this court. Superior v. Roemer, supra, and authorities there cited, to which may be added Newton v. C., R. I. & P. R. Co. 66 Iowa, 422, 23 N. W. 905; Wabash R. Co. v. Defiance, 167 U. S. 88, 17 Sup. Ct. 748.
Proceeding to take up the second proposition, I freely admit that the viaduct satisfies and was intended to satisfy certain public needs not resulting from the construction of the railroad or the presence of the tracks. Here was a deep valley, four fifths of a mile wide, containing two canals run
The very first act passed by the legislature on the subject (doubtless at the request of the city authorities) conclusively shows that the legislative thought then was that the proposed viaduct was made necessary in part because the defendant’s tracks had made it dangerous to use Muskego avenue. This act (ch. 476, Laws 1887) requires the railway company to build the south half of the viaduct simultaneously with the building of the north half by the city, and provides for perpetual maintenance of the same by the railway company and the city in the same proportions. The railway company did not comply with this act and apparently no attempt was made to compel obedience. It is unnecessary to discuss the question here whether obedience could have been compelled or not: the chief significance of the act is that it expressed the judgment of the legislature at that time that the improvement was a joint improvement, to the expense of which the railway company should be 'required to contribute a just proportion. This could only be on the
This act having failed of its purpose, ch. 231, Laws 1889, was passed, providing that the city should at once condemn the lands over which the viaduct now passes and should have power to use the lands condemned for a bridge or viaduct and any other proper street. In this act no reference is made to the railway company. Whether it had been concluded by the city that the company could not be compelled to coin-tribute to a viaduct not located on the line of Muskego avenue, or whether it was thought that it would be best to make the Sixteenth street viaduct purely a city enterprise and require the railway company to build a separate viaduct on the line of Muskego avenue, is not clear and probably not important.
At any rate it is certain that in January, 1891, the common council of the city had determined that, if the railway company was not willing to contribute its just share of the expense of the contemplated viaduct at Sixteenth street, it should be compelled to build a separate viaduct at Muskego avenue carrying that avenue over all the company’s tracks which crossed the same. This appears from two' resolutions passed by the council, the first January 12, 1891, providing for the appointment of a special committee to confer with the officers of the railway company relative to the construction of a viaduct over their tracks in the Menominee valley and as to what proportion of the expense the company would bear, and the second, passed February 9, 1891, directing the railway company to build separate viaducts, with easy approaches and on plans approved by the city engineer, over all its tracks where the same cross Muskego avenue and Thirteenth street.
This was the situation of affairs when ch. 122, Laws 1891, was passed March.30th of that year; the railway company had declined to contribute to the expense of constructing the
Remembering that the railway company was at that time under order to construct its own viaduct, it becomes entirely plain that the act was the result of negotiation between the city and the company, and it becomes perfectly clear, also, that all parties interested understood that the viaduct authorized by that act was to be in part a substitute for the Muskego avenue crossing and as to such part to be paid for by the railway company. The act shows on its face that in case agreement could be reached between the city and the company? as to the just amount which the company should contribute to the expense of the viaduct, so much of Mus-kego avenue crossed by the tracks as was desired by the company was to be vacated and the crossing abolished, and, as a necessary result, the portion contributed by the railway company to the Sixteenth street viaduct accepted by the public in place of the old Muskego avenue crossing. I shall not attempt to dissect the act in order to demonstrate this. The very careful provisions requiring the vacation of those parts of Muskego avenue as soon as the company had paid its proportion of the expense of the viaduct, and the further provisions formally relieving the company of the duty to build any viaduct over any part of Muskego avenue for all time to come, however great the multiplication of tracks, leave no room for doubt on the point. So far as this crossing is concerned, Muskego avenue was to be transferred to the Sixteenth street viaduct when the arrangements authorized by this act were carried out.
Nor is it difficult to determine how large a portion of the new viaduct is in effect the Muskego avenue substitute cross
Our statutes not only allow but provide'for making reasonable change in the location of highways and crossings which' have been made dangerous or undesirable by thé presence'óf railroad track's. Sub. (5), sec. 1828, and sec. 1836, Stats.
"To my mind that is substantially what was done in the present case by the joint affirmative action óf 'the state,.the city, arid.the company.' - If so, the viaduct has become in substance the old crossing in a changed location. True, it is •more than that: it is also a great municipal improvement demanded by'other public neéds, but that does not prevent it from being to á definite and ascertainable extent the Mus-kego avenue crossing in a different location. To hold'otherwise. seems to me to subordinate the substance of things to mere names. ' ‘
In my opinion the judgment in this case relieves the company by judicial action of a duty laid upon it not only by the common law but by statute.