Eisler v. Chicago, Milwaukee & St. Paul Railway Co.

163 Wis. 86 | Wis. | 1916

ViNJE, J.

The railway company makes two main contentions on its appeal. The first is that since the change in grade was made in pursuance of the valid exercise of a police power the taking is damnum absque injuria.' This contention was negatived by this court in Buchner v. C., M. & N. W. R. Co. 56 Wis. 403, 416, 14 N. W. 213, where it was held that the lowering of a grade of a highway in front of the owner of the premises to make it conform to the grade of the railway was not damnum absque injuria, but a taking of private property for which just compensation must be made as required in sec. 13, art. I, of the state constitution. This ruling was again reaffirmed in Buchner v. C., M. & N. W. R. Co. 60 Wis. 264, 213, 19 N. W. 56, and has since been steadfastly adhered to, the ease of Pabst B.Co. v. Milwaukee, 157 Wis. 158, 147 N. W. 46, being the last to reaffirm it. It was there held that the right of taking on the part of the railroad is a continuing one that may be exercised at any time when occasion therefor occurs, and that each taking is the exercise of a power granted to it by the state.

The railroad company’s second contention is that the taking in the present case is not a taking by the railway company, but is a taking by the city under an ordinance received in evidence passed by the city which in detail describes just how the track shall be elevated and the avenue lowered; prescribes the material to be used; provides that the city shall adjust and pay all damages caused by the change in grade of any street, and that the ordinance shall not be in force till accepted in writing by the railway company. The provisions of the ordinance are not set out in further detail because it is deemed they have no legitimate bearing upon any question raised by the appeal. The taking in the present case, though made a long time after the road was built, is none the less a taking by the railway company under its charter powers. In Pabst B. Co. v. Milwaukee, supra, it was expressly held that there was no power in the city to take land for railroad purposes. That being so, the city cannot, in the absence of express legislative authority so to do, confer any power upon the railway to take. It follows that, since the railway takes by virtue of its statutory power and the taking is not damnum ■absque injuria,. the court properly appointed commissioners to determine the damages which the petitioner sustained by reason of the taking.

By the Court. — Order affirmed.