86 Wis. 597 | Wis. | 1893
It sufficiently appears -from the foregoing statement that since the construction of the depot mentioned the defendant had used the street opposite the plaintiff’s lot in such a manner as to completely obstruct all travel with teams thereon, and to entirely destroy the
According to the complaint, the defendant has had no authority, as against the plaintiff, to obstruct the street in front of his premises, except under and by7 virtue of the instrument in writing whereby there was granted to the defendant’s predecessor “the right to construct, maintain, and operate its railroad ” in the street, “ in front of said lot, . , . as the same was at the date of said instrument constructed.” Of course, this grant gave to the defendant’s predecessor, and so to the defendant, all the rights which are thereby necessarily implied. But manifestly it gave to neither the right to destroy the street as a public highway in front of the plaintiff’s lot. The statutes only authorized such construction and maintenance of such railroad in the street on condition that the company should restore the highway “ to its former state, or to such condition as that its usefulness ” should “ not be materially impaired, and thereafter maintain the same in such condition against any effects in any manner produced by such railroad.” R. S. sec. 1828, subd. 5, and sec. 1836. It has repeatedly been held that such duty is enforceable by the courts. Jamestown v. C., B. & N. R. Co. 69 Wis. 648; Oshkosh v. M. & L. W. R. Co. 74 Wis. 534; State ex rel. Grady v. C., M. & N. R. Co. 79 Wis. 259. Thus, it appears that the obstruction and inter
“ A railroad company cannot monopolize a street, in derogation, of the public and private use to which it has been applied.” Janesville v. M. & M. R. Co. 7 Wis. 484. In Farrand v. C. & N. W. R. Co. 21 Wis. 439, Dixon, C. J., said: “ The company has no right to appropriate the whole or any part of the street to its own exclusive use, as for side tracks, switches, engine houses, depot buildings, and the like, and so destroy the public right of way.” In Penn. R. Co. v. Angel, 41 N. J. Eq. 316, it was held that “a railroad company using, for the purposes of a terminal yard, a portion of a street over which it has only a right. of way, is responsible for any nuisance, public or private, thereby created.” The same rule was applied in the Same state, where, as here, the railway company acquired the right to lay its track in a public street by grant. Thompson v. Penn. R. Co. 45 N. J. Eq. 870. In Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 329, Mr. Justice Field, speaking for the court, said: “ The engine house and repair shop of the railroad company, as they were used, rendered it impossible for the plaintiff to occupy its building with any comfort as a place of public worship. . . . Plainly, the engine house and repair shop, as they were used by the railroad company, were a nuisance in every sense of the term. . . . For such annoyance and discomfort the courts of law will afford redress by giving damages against the wrongdoer, and when the cause of the annoyance and discomfort are continuous courts of equity will interfere and restrain the nuisance.” S. C. 137 U. S. 568. See, also, New York El. R. Co. v. Fifth Nat. Bank, 135 U. S. 432. In Truman v. L., B. & S. C. R. Co. 29 Ch. Div. 89, the
The obstruction of the passage to and egress from the warehouse and elevator in question by means of a permanent embankment, the storing of cars, and other mere depot uses, is not only in contravention of the express terms of the grant, but also of the mandate of the statute cited. Upon authority and reason, we must hold that the complaint states a good cause of action.
By the Court.— The order of the circuit court is affirmed.