Ashland Street-Railway Co. v. City of Ashland

• Decision Date: 16 December 1890
• Parties: ASHLAND STREET-RAILWAY CO. v. CITY OF ASHLAND.
• Court: Wisconsin Supreme Court

78 Wis. 271

47 N.W. 619

ASHLAND STREET-RAILWAY CO.

v.CITY OF ASHLAND.

Supreme Court of Wisconsin.

Dec. 16, 1890.

Appeal from circuit court, Ashland county.

E. J. Dockery, for appellant.

Tomkins, Merrill & Smith, for respondent.

ORTON, J.

The respondent company built its track on Second street of the city of Ashland, to correspond with the grade of the same. Afterwards the city raised the grade of said street so as to require considerable filling, and requested the company to raise the grade of its roadbed and track to correspond with such change of the grade of said street, and the company did so at an expense of $2,037.80, and brings this action to recover the same of the city. This is substantially the complaint, to which the appellant demurred on the ground that it did not state a cause of action, and the demurrer was overruled, and the city appeals from said order. The demurrer was improperly overruled. The company obtained its franchise and authority to construct its tracks in the streets of the city by an ordinance of the city, and “subject to the conditions and limitations” therein, according to section 1 of said ordinance. This grant and its conditions constitute the contract between the city and the company, under which the company has so constructed its railway in the streets of the city, and is valid and binding upon both parties. Section 2 of said ordinance provides that “the roadbed shall at all times correspond with the actual grade of the streets, and shall be so laid and maintained that carriages and other vehicles can easily and freely cross the track at any and all parts and directions without obstruction to travel on the streets, * * * and shall keep the space between the rails, and for the distance of a foot without the line of said rails, in proper repair so as not to interfere with travel upon the same, and shall keep the same in repair.” Section 3 provides that “the said railways are to be constructed and operated as aforesaid on such grades as have heretofore been or hereafter may be established by the city. In case the common council shall at any time change the actual grade of any streets upon which said railway track shall be laid, said grantee, its assigns or successors, shall, within a reasonable time, upon the completion of such change of grade, relay the track of said railway to correspond to such grade, at their own expense.” Said section further provides in effect that the city may at any time change...