Beloit, D. L. & J. Ry. Co. v. MacLoon

• Decision Date: 05 June 1908
• Court: Wisconsin Supreme Court
• Parties: BELOIT, D. L. & J. RY. CO. v. MACLOON ET AL.

136 Wis. 218

116 N.W. 897

BELOIT, D. L. & J. RY. CO.

v.MACLOON ET AL.

Supreme Court of Wisconsin.

June 5, 1908.

Appeal from Circuit Court, Rock County; George Grimm, Judge.

Proceedings by the Beloit, Delavan Lake & Janesville Railway Company against William H. H. Macloon and others to condemn property for an interurban railway. From a judgment dismissing the proceedings, petitioner appeals. Affirmed.

This is a condemnation proceeding brought by a street and interurban electric railway company to condemn the interests of adjoining property owners in a street in the city of Janesville, and the company appeals from an order denying the application and dismissing the proceedings.

The condemnation petition was filed June 2, 1904. The respondents severally own certain lots on Wall and Franklin streets in the city of Janesville, upon which streets the petitioner seeks to condemn a right to operate its railway. The railway was, in fact, laid in June, 1902, and has been since operated by the petitioner both as a street and interurban railway. The petition for condemnation alleged, among other things, that the petitioner was a street railway company duly incorporated under chapter 86, §§ 1771-1791m, St. Wis. 1898; that, by virtue of certain ordinances passed by the common council of the city of Janesville May 13, 1901, and May 12, 1902, the petitioner was granted a 50-year franchise to construct, maintain, and operate “a street railway for the carriage of passengers” upon certain streets in said city, including the streets over which it seeks condemnation in this proceeding; and that it has constructed and now operates such street railway, and has extended the same into the adjoining township of Rock to meet an extension of another street railway operated by it in the city of Beloit, thus forming an interurban connection between the two cities so that passengers from Beloit and other places are transported over its line into the city of Janesville; and, further, that it intended to use the streets and property to be condemned for street railway purposes. The respondents answered, denying that the petitioner had any right either by its articles of incorporation or by either of the ordinances named in the petition any authority to construct or operate any railway on the streets sought to be condemned, and, further, that it did not operate a street railway, but a commercial railway for the carriage of passengers and baggage from Janesville to Beloit, Rockford, and other points, and that the streets sought to be condemned were not necessary for the operation of its railway.

Upon the trial the facts were stipulated, in substance, as follows: The petitioner was incorporated under chapter 86, §§ 1771-1791m, St. 1898, in March, 1901; its business being to “construct, maintain, purchase, lease, and acquire a railway or railways for the carriage of persons and property, including mail, express matter, baggage, freight, or any thereof, and the furnishing of light, heat, and power,” and its location being at the city of Beloit. In August, 1901, it duly amended its articles of incorporation, and by such amendment declared that the purpose of the corporators was to form a corporation under chapter 86, §§ 1771-1791m, and under sections 1862a-1863, 1863a, c. 87, St. 1898, and the laws amendatory and supplemental thereto “for the business and purpose of purchasing or otherwise acquiring, constructing, equipping, leasing, maintaining, and operating by electricity or other power a street railway for the transportation of passengers in the city of Beloit, county of Rock, state of Wisconsin and elsewhere as it may by law be authorized to do * * * and of acquiring, building, maintaining, operating, and using any street railways for the transportation of passengers or for the transportation of mail, express, merchandise and freight, or both or all in any city, village, or town, and to extend its railway or railways from any point in one city, village, or town, to, into, and through any other city, village, or town.” Other purposes were also inserted which are unnecessary to be inserted here. On the 12th of April, 1901, the petitioner applied to the city council of the city of Janesville for a franchise giving it the right to operate an electric street railway on certain named streets on the east side of Rock river, in said city, none of which streets intersected or connected directly with either Wall or Franklin streets. Said application was regularly published in all the daily issues of the Janesville Recorder, the official paper of Janesville, beginning April 13th and ending April 27th, except that it was not inserted in the issue of Sunday, April 14th. At a regular meeting of the council held April 29, 1901, proof of publication was filed, and the application was referred to a committee, which committee at the same meeting presented a report recommending the passage of an ordinance granting petitioner the right to construct and operate an electric railway for the carriage of passengers upon certain named streets in the city on the east side of Rock river, thus making a complete change of route from one side of the river to the other. The council passed the ordinance recommended by the committee April 29th aforesaid. It was afterwards vetoed by the mayor, but passed over the veto May 13, 1901. This ordinance purported to give the railway company the right to construct a loop around one block bounded on the east by Franklin street, north by West Bluff street, west by Jackson street, and south by Wall street, and passing the premises of the respondents Macloon and Murdock. On May 12th another ordinance amending the first-named ordinance was passed, which gave petitioner the right to include another block in the loop, thus going one block further west, and passing the premises of the respondent Bronson, and continuing to pass the premises of Macloon and Murdock in the same manner as before. No notice of application for the passage of the amended ordinance was published. Both ordinances were duly accepted by the petitioner.

On or about June 20, 1902, the petitioner began the construction of its railway on Wall and Franklin streets in front of the respondents' several lots, and on that day the respondents, by notice in writing, forbade the construction of the road, but the petitioner proceeded with and completed the road, and extended it outside of the city to meet an extension of an electric railway owned by it extending to the cities of Beloit and Rockford, and began and continued to operate an electric interurban railway between the three cities for carriage of passengers and baggage, using the loop for the passage and turning of its interurban cars, and also transacting a city street railway business in Janesville over the same route and in the same cars. No direct action by quo warranto was ever commenced to contest the validity of the said ordinances, but, soon after the construction of the road, the respondents commenced separate actions in equity to enjoin the construction and operation of the road, on the ground that it was an...