126 Wis. 179 | Wis. | 1905
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
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
By the Court. — That part of the order which is appealed from is affirmed.