Eastern Wisconsin Railway & Light Co. v. Winnebago Traction Co., 126 Wis. 179

Eastern Wisconsin Railway & Light Co. v. Winnebago Traction Co.

126 Wis. 179 | Wis. | 1905

WiNsnow, T.

There was much discussion in tbe briefs of counsel upon tbe question whether tbe defendant bad forfeited its right to construct double tracks in tbe streets of the city .of Oshkosh; but, as we view it, that question is not tbe question upon which tbe case turns. Tbe defendant acquired, by tbe ordinances under which it operates, tbe right to build and maintain “a single or double track railway, with all necessary switches and turnouts,” upon certain streets of tbe city, provided that tbe entire line should be completed and in operation on or before a certain date. Tbe question presented is simply as to tbe proper construction of this grant. Should it be construed as granting to tbe defendant tbe right to build within a certain time either a single-track railroad or a double-track railroad, or should it be construed as granting tbe right to build a single-track railroad within tbe prescribed time, and to lay additional tracks at any place and at any time in tbe future and thus convert it wholly or partially into a double-track road as it might choose ? In other words, was tbe right an option which must be acted upon within a certain time, and which was exhausted when acted upon; or was it a continuing privilege to lay either single or double tracks at any time within the life of the franchise ?

This is purely a question of the proper and reasonable con*185•struction of the language used, and there is little in the way of authority which throws any light on the subject. The cases of Ransom v. Citizens’ R. Co. 104 Mo. 375, 16 S. W. 416, and Burlington v. Burlington St. R. Co. 49 Iowa, 144, are relied upon by the appellant as tending to support its contention, but it is plain that they have no material bearing on the question. In the first case cited the city of St. Joseph granted to the plaintiff a right of way for the construction and operation of street railways in the city, with the power and privilege to construct double tracks with turnouts and switches; the same to he completed within a specified time. A single track was laid and operated for many years, when the company prepared to lay a double track, and an adjoining property owner challenged the right. The court, while confessing that the language was not clear, held that the true import of the words of grant appeared by treating the words “with the power and privilege to construct double tracks” as if in parenthesis. With this interpretation there was no question hut that the right was a continuing one. In the second case cited the city by ordinance granted the company authority to lay single or double tracks on certain streets, and the company laid a single track. Afterwards the city attempted to amend the ordinance and take away the right to lay double tracks, and it was held that the original ordinance with its acceptance constituted a contract which the city had no power to change. These cases are not helpful upon the proposition before us, nor does the case of Workman v. S. P. R. Co. 129 Cal. 536, 62 Pac. 185, 316, throw any light upon it.

That a single-track railroad and a double-track railroad are •entirely different things is made clear by the affidavits used upon the motion, and is doubtless a matter of common knowledge. That the defendant’s road was a single-track road is ■equally clear. It had turnouts and switches, some of them ■500 or 600 feet long, and one, crossing a bridge, over 1,000 feet long; but it clearly appears that they were nothing more *186than switches or turnouts, which, of course, are absolutely necessary in the operation of a single-track road. If the grant' was the grant of an option to build one or the other, it is certain that the company exercised its right of choice. Looking at the language used fairly and reasonably it seems to us quite clear that it was an option. A right to do either one of two different things within a certain time is a right to do one thing, not two. Here the right was to build and operate “a single or double track street railway,” provided it was built and in operation on or before ‘a certain time. A single-track railway was built and in operation within that time. One' alternative was accepted, and the other was rejected and necessarily lapsed, because both were not offered. This view necessitates affirmance.

By the Court. — That part of the order which is appealed from is affirmed.