Town of Jamestown v. Chicago, Burlington & Northern Railroad

69 Wis. 648 | Wis. | 1887

Cole, C. J.

Though this is an appeal from an order refusing to strike from the files (and overruling the demurrer) the amended complaint, because the cause of action has been changed from one at law to one in equity, still no objection is now taken to the order on account of such change. The original complaint was doubtless based upon a legal action to recover damages for the destruction of a highway of the town; but there were two amended complaints subsequently served and filed, asking equitable relief. These complaints were excepted and demurred to on the ground that they did not state a cause of action; but no objection was taken that an unauthorized amendment had been made which changed the action from one at law to one in equity. Under the circumstances, the learned circuit court held that the objection to the refusal to strike the amended complaint from the files for that reason had been waived, and at the same time overruled the demurrer. We think the court was right in the view it took of the matter; at all events, no objection is now taken to the order on account of the change in the cause of action. That point need not further be considered, and we pass to the questions raised by the demurrer.

The action is for a mandatory injunction to compel the defendant company to restore to its former state of usefulness a public highway which it has practically destroyed in making its railroad track. It is alleged, in substance, that there was a public highway, of great importance to the residents of the to^n, which extended along the bottom and bluffs of the Mississippi river on the east side, which had been used and worked by the town for many years, and which afforded the only convenient communication to market for those citizens of the town who resided on the bottom and adjacent bluffs of the river. It is alleged that the Winona, Alma & Northern Eailway, the predecessor of the defendant company, began to trespass and destroy this highway in the year 1884, and that this destruction has been continued by the defendant company to the commencement of this suit; that the defendant in building its road has taken possession of many portions of the highway, and by excavation, digging, and piling dirt upon them, by grading its track, has rendered the highway wholly impassable and useless for travel; that there is not space enough in many places between the bluff and the river for the railroad track and highway; and that it is impossible for the town to construct a new highway by the side of the railroad without great and unnecessary expense of at least $5,000, and without first destroying the railroad track. The relief asked is that the defendant be enjoined from further obstructing the highwajq and that it be ordered to restore it to its former state, or to such condition that its usefulness will not be materially impaired as a highway.

The main objection to the complaint is that the town has no right to bring the action; that it has no such interest in the preservation and protection of the highways within its limits as will warrant it in invoking the relief sought. This question is a new one in this court, so far as we are advised; but we are inclined to sustain the action upon this ground: Towns in this state are responsible for the construction and repair of all highways within their limits. They are liable for damages to travelers occasioned by obstructions and defects, and they should have legal remedies commensurate in some degree to their liability. The statute gives to the supervisors of towns the care of highways in their respective towns, and makes it their duty to see that they are kept in repair, and to cause to be removed all obstructions therefrom. Sec. 1223, R. S. It seems to be the policy of all legislation upon the subject that the officers of the town shall be charged with the duty of preserving and repairing-highways, and of keeping them in a suitable condition for travel. Ch. 493, Laws of 1887, is in harmony with this legislation, and authorizes town supervisors to enter into contracts or make arrangements with railroad companies in respect to crossings of highways by railroads. Now, in view of all this legislation, we are inclined to hold that a town has a redress for the destruction of one of its highways, and may maintain an action to compel a railroad company to restore it to its former usefulness, where it has impaired it by building its track. Every railroad company is authorized to construct its road-bed across or along the highway, upon condition that it restore such highway to its former state of usefulness. Secs. 1828, 1836, R. S. Now, the town seeks to enforce the performance of this plain, positive, statutory duty for the benefit of its citizens. The complaint alleges that the town requested the defendant to perform this legal duty, with which request it has failed to comply. Upon the allegations of the complaint, it appears prima, faoie that ample time has elapsed since the defendant destroyed the highway to restore it for public travel. The work of destruction commenced in 1884, but no reparation had been made when this action was brought. Of course, it is impossible to use the railroad track for an ordinary highway. And since the defendant has appropriated the highway for the use of its road, or destroyed it for the purposes of travel, it would seem to be but manifest justice and equity to compel it to perform its duty which the law imposes. It is impossible to say that the town has suffered no special injury b}? the destruction of the highway which it has piade, and upon which it has expended large amounts of labor and money to keep in repair. The injury is of so serious a character that the restoring of the highway to its former condition is the only remedy which will meet the requirements of the case. Upon the facts stated, we think the court should exercise its jurisdiction by mandatory injunction to compel the defendant to perform that duty. The authorities upon injunction warrant such an exercise of the writ. Kerr, Inj. 231, 232; 1 High, Inj. § 2; McDonogh v. Calloway, 7 Rob. (La.), 442; Church v. Gristgau, 34 Wis. 328.

The case of Springfield v. Conn. Riv. R. Co. 4 Cush. 63, was a bill in equity to enjoin the defendants from maintaining a railroad and running cars thereon upon and over a public highway in Springfield, on the ground that the railroad was a nuisance. It was held that the inhabitants of the town, in their corporate capacity, had such an interest in the preservation and protection of the highways of the town as would warrant them in applying to the court to restrain and prevent such nuisance. Afterwards a statute was passed by which jurisdiction in equity was given the court to compel railroad corporations, on the application of the municipal authorities or selectmen of the town, to comply with the orders of the county commissioners respecting the manner of constructing a railroad which crosses a public highway. Brainard v. Conn. Riv. R. Co. 1 Cush. 506.

But it is said Milwaukee v. Mil. & B. R. Co. 7 Wis. 85, and Sheboygan v. S. & F. du L. R. Co. 21 Wis. 675, are authorities against the town’s maintaining this suit. In the first case, the city of Milwaukee, by virtue of its interest or property in the streets, attempted to enjoin the railroad company from building its road in the street. It was held that the city had no such property or interest in the streets as would authorize it to maintain the suit. But the question we have been considering was not even alluded to in the case, and, of course, not decided. In the Sheboygan Case, it was not clear whether the acts complained of were, authorized by the charter or not. But as the right to the injunction depended upon a disputed question, it was held that no injunction should issue until, at least, by an action at law, the acts of the company were shown to be illegal. In the opinion this language is used: “ Our statute imposes upon towns the obligations of keeping in repair all public highways and bridges within their respective limits. The town, therefore, has an interest of a certain kind in preventing acts destructive of a public highway within its limits, not common to the people at large.” We think this remark states the true ground of the right of the town in this case to invoke the equity powers of the court.by injunction.

By the Court.— The order of the circuit court is affirmed.