120 Wis. 477 | Wis. | 1904
“A railroad constructed on tbe grade of a street, and operated so as not to materially interfere with tbe common use thereof for public travel by ordinary modes, or with private rights of abutting landowners, and for tbe purpose of transporting persons from place to place on sucb street at their reasonable convenience, is not an additional burden on the fee thereof. A railroad satisfies tbe above essentials, regardless of tbe motive' power used, or bow it is applied, if it be strictly a street railroad for tbe carriage of passengers on tbe street, taking them on and discharging them at reasonable points, and it be so constructed and operated as not to materially interfere with the ordinary modes of using tbe street for public travel or with private rights.”
“An electric railway for the carnage of passengers between cities, which is constructed and operated upon a country highway, is an additional burden upon such highway, .and its proprietors cannot, even with the permission of the town authorities, granted for the sole purpose of enabling them to do so, cut down the highway so as to seriously impair the rights of an abutting owner to access to his lot, without his consent, or the payment- of compensation to him.” See, also, Krueger v. Wis. Tel Co. 106 Wis. 96, 103-107, 81 N. W. 1041; Linden, L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 511-513, 83 N. W. 851; Allen v. Clausen, 114 Wis. 244, 249, 90 N. W. 181.
Of course, the same is true as to the defendant’s line of railway from the city of Waukesha to Waukesha Beach. It is conceded that the rule stated is applicable to the whole line from the city of Milwaukee to Waukesha Beach, except within the limits of the city of Waukesha. The defendant claims the right to run its trains and cars from the city of Milwaukee directly through the city of Waukesha and to Waukesha Beach. In doing so it is conceded that, while such trains or cars are interurban, they do cast an additional burden on the lands of abutting owners, which entitles them to compensation; but it is claimed that the moment such trains or cars pass into the city of Waukesha they cease to cast any such additional burden upon the lands of such abut
“Prior to the enactment of ch. 465, Laws of 1901, street railway companies had no right to condemn land in the streets of cities or villages; and where a street railway was constructed without authority in such a street the abutting owners might resort to the ordinary actions for relief.”
Tbe result is that the only adequate remedy the plaintiffs had at the time of the commencement of this action was to restrain the defendant from casting such additional burden upon their lands as such abutting lot owners; and such right of action was common to all of them. Id. The facts were in issue, and all appear in the record, and are undisputed. The mere fact that the plaintiffs have prayed for relief to which they are not entitled is no ground for refusing to them the relief to which they are entitled. This decision must be regarded as limited to the condition of things "at the time this action was commenced.
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded, with directions to enter .judgment in favor of the plaintiffs and against the defendant as indicated in this opinion.