Sinnott v. Chicago & Northwestern Railway Co.

81 Wis. 95 | Wis. | 1892

LyoN, J.

The lot of the respondent all lies west of the center line of Beach street, and the railroad tracks were laid down and remain east of that line. Hence none of the respondent’s land has been taken by the railroad company. Before the enactment of ch. 255, Laws of 1889, he could not have maintained condemnation proceedings in respect thereto. Such was the settled law of this state down to the time of such enactment. Heiss v. M. & L. W. R. Co. 69 Wis. 555, and cases cited; Trustees v. M. & L. W. R. Co. 77 Wis. 158; Smith v. Eau Claire, 78 Wis. 457. The rule of these cases has been ably criticised, and its soundness denied, by the learned counsel for the respondent, and he has cited numerous eases which he claims show that the tendency of the later adjudications are against the rule. A similar argument was unsuccessfully made, and many of the same cases cited, in Smith v. Eau Claire, supra. We adhere to what was there said on the subject (78 Wis. 460), and it is unnecessary to repeat the discussion, here. This proceeding, therefore, cannot be upheld unless it is authorized by ch. 255, Laws of 1889 (sec. 1296a, S. & B. Ann. Stats.).

Briefly stated, ch. 255 enacts that the owner of real estate on a street shall have a common right to the free and uninterrupted use of the street to its full width, and that no municipality or other corporation shall close up, use, or obstruct it so as to materially interfere with its usefulness as a highway or damage property abutting thereon on either side, without making due compensation therefor to the owners of the property thus damaged. These provisions are made subject to the following proviso: “ Provided, however, that this act shall not be so construed as to require the payment of damages to property on both sides of any street, highway, or alley, arising from the continued use, maintenance, and operation hereafter of any railroad track or tracks, or other public improvement, heretofore legally laid down, built, or established in any such street, highway, or alley.”

In order to determine whether this case is within the statute, the controlling question is, Were the railroad tracks complained of “ legally laid down, built, or established ” in Beach street before ch. 255 was enacted? If they were, this condemnation proceeding cannot be maintained. If they were not, it may be maintained, and the order appealed from should, in such case, be affirmed.

• It is alleged in the petition, in substance, and the circuit court found and adjudged, that such tracks were laid down (quoting from the order) “illegally and without any authority of law on the part of said railway company, and without any attempt to restore said street to its former state or so that its usefulness should not be materially impaired ; and that the same has been used by said railway company, at all times since the same was laid down, for the transportation of its cars and engines thereon, and for switching and storing cars, and for general depot purposes, illegally and without any authority of law, and are now so illegally used by the said railway company without any authority of law for that purpose.” The order appointing commissioners rests entirely upon the above findings. Manifestly, they are insufficient to uphold the order.

1. The facts that the railway company failed to restore the street, by reason of which its usefulness was materially impaired, and that the company used the streets for switching and storing cars, and for general depot purposes, without lawful authority, are quite immaterial. The company may be guilty of all these alleged unlawful acts and omissions, and still the tracks may have been “legally laid down, built, or established ” in the street, which is sufficient to bring the case within the 'proviso, and thus exclude the respondent from the right to any relief under the statute.

2. The court only finds that the tracks were illegally laid down. This alone is not sufficient to give the respondent the right to maintain condemnation proceedings. The tracks may have been laid down in the street, in the first instance, without lawful authority, yet, if the railway company afterwards acquired legal right to maintain them there, they became thereby legally established, and this case is within the saving proviso of the statute. It'will be observed that such proviso is in the disjunctive, — “ legally laid down, built, or established.”

But we think the tracks were legally laid down in Beach street. "When they were laid, ch. 119, Laws of 1872, had been enacted and was in force. Sec. 11, subd. 5, ¹ of that .act gave the railway company authority to lay these tracks, '■and we are not informed that the legislature has ever taken away such authority. True, in 1874 the legislature, for the first time after the enactment of ch. 119, Laws of 1872, conferred on the common council of Milwaukee power “ to direct and control the location of railroad tracks ” within the city. Laws of 1874, ch. 184. But we do not Suppose this law was intended to empower the council arbitrarily to compel a railroad company which had before the passage of the act built a railroad along a street of the city under legislative authority, to tear up its tracks, and thus be deprived of a continuous passage through the city, and per•haps from entering into it. But, however that may be, it does not appear that the common council has ever attempted -to interfere with the tracks in question. It appears, however, that on September 30, 1890, the board of public works of that city ordered the appellant, “ on or before October 25, 1890, to remove all of its said railroad tracks, cars, and engines permanently off from the said Beach street, as obstructions to the free and proper use of the said street by the public.” It is not necessary to examine very closely into the powers of that board to be able safely to say that an order which requires a railroad company, on twenty-five days’ notice, to tear up a part of its track, and thus prevent it from running its trains to its general depot, and continuously over its lines of road beyond such depot, as it had done without objection or interruption for eighteen years, is beyond the authority of the board of public works.

3. It is further claimed that the tracks complained of were not lawfully laid down, neither have they been lawfully established, because, as it is alleged, the railway company never obtained the right from the owners of blocks 410 and 111, or by condemnation proceedings, to occupy the street abutting those blocks with such tracks. The position is not well taken, for two reasons. In the first place, it is no concern of the respondent whether the com.pany has acquired that right as against the owners of those blocks or not. It does not appear that those owners have made any objection, to such occupancy, and the respondent cannot make the objection for them. In Trustees v. M. & L. W. R. Co. 77 Wis. 158, an ordinance of the city provided for laying the railroad track in the center of the street. It was laid entirely on one side of the center, and it was claimed for that reason the track was not legally laid. But the claim was negatived because the city had made no complaint. The ruling is in point here.

In the second place the railway company showed aprima faeie title to blocks 110 and 111. It proved two deeds in due form, one executed by James Blake, and the other by Charles Howard, purporting to convey to the railway company both blocks. These deeds were executed and recorded in 1873 and 1875, respectively. The only attack made upon them is contained in an affidavit of three of the petitioners, in which each of them swears to his opinion that Blake and Howard never owned the blocks, and that the deeds were obtained by the railway company fraudulently, for the purpose of acquiring color of title, in order that, it might avail itself of the ten-years statute of limitations. Without stopping to inquire what would be the legal effect of the facts, were they proven, which the affiants say they believe to be true, it is sufficient to say of these affidavits that they prove nothing. No fact or circumstance is stated in support of the opinions therein expressed, and they amount to nothing more than affidavits of the suspicions of the affiants. The deeds in question make good color of title in the railway company, and its actual and uninterrupted adverse possession under them for ten years establishes its right to maintain its tracks in the street as against any person claiming an interest in those blocks.

Our conclusion is that the court erred in granting, the order appointing commissioners. Such order must therefore be reversed, and the circuit court will dismiss the proceedings.

By the Court.— Ordered accordingly.