Brickles v. Milwaukee Light, Heat & Traction Co.

• Decision Date: 28 January 1908
• Citation: 134 Wis. 358,114 N.W. 810
• Court: Wisconsin Supreme Court
• Parties: BRICKLES v. MILWAUKEE LIGHT, HEAT & TRACTION CO.

134 Wis. 358

114 N.W. 810

BRICKLES

v.MILWAUKEE LIGHT, HEAT & TRACTION CO.

Supreme Court of Wisconsin.

Jan. 28, 1908.

Appeal from Circuit Court, Waukesha County; James J. Dick, Judge.

Condemnation proceedings by the Milwaukee Light, Heat & Traction Company against L. F. Brickles. From a judgment of the circuit court for Brickles for nominal damages, and awarding costs to the traction company, on appeal from the commissioners' award, Brickles appeals. Reversed, and remanded for a new trial.

The appellant acquired title to lot 3 in block B of Hadfield's Second addition to Waukesha, abutting on Lincoln avenue, upon September 7, 1903, from one Eugene Horr, who acquired title to the same premises in 1891. The respondent is an electric street and interurban railway corporation, and has been since about 1898 operating electric interurban cars on Lincoln avenue upon tracks laid in that street and with the necessary appliances of poles and wires. On March 3, 1904, the respondent filed in the circuit court for Waukesha county a petition for the appointment of commissioners for the condemnation of all the rights of property which would entitle the owners and persons interested in the lots fronting and abutting upon Lincoln avenue to damages by reason of the construction, maintenance, and operation on said Lincoln avenue of a double-track interurban railway, but subject to a franchise described or referred to in said petition. The commissioners appointed on this petition appraised the damages of the plaintiff at $128.20, and those of the plaintiff's grantor, Horr, at 6 cents. The respondent appealed from the plaintiff's award of damages, but did not include in said appeal the award to Horr. The plaintiff did not appeal to the circuit court. The plaintiff moved in the circuit court to dismiss the appeal of the respondent from the award, because not taken from the gross award. This motion was denied, and plaintiff excepted. The case was then tried on this appeal, and it appeared from the award appealed from that the damages were ascertained, appraised, and determined by the commissioners by reason of the respondent taking, condemning, and permanently appropriating so much of said lot as lies within Lincoln avenue for a right of way for the construction, maintenance, and operation thereon of the double-track interurban railway authorized by respondent's articles of incorporation and its franchises from the city of Waukesha. It further appeared in evidence that the tracks were laid down in said street in 1898, and double-tracked in 1900, and that they were used for street railway purposes. When the interurban cars coming from Milwaukee and passing through Waukesha, or returning to Milwaukee passing through Waukesha, enter within the city boundaries, they do a street-car business, stopping at street crossings on signals to take on and let off passengers, but otherwise are engaged in interurban traffic.

Among other references cited upon the part of the appellant were the following: Spaulding v. M., L. S. & W. Ry. Co., 57 Wis. 304, 14 N. W. 368, 15 N. W. 482;Morris v. Brewster, 60 Wis. 229, 19 N. W. 50;Chinnock v. Stevens, 23 Wis. 396;Widner v. Wood, 19 Wis. 190;Watson v. M. & M. Ry. Co., 57 Wis. 332;¹Washburn v. M. & L. W. Ry. Co., 59 Wis. 379, 18 N. W. 431;Sayles v. Davis, 20 Wis. 302; section 1849, St. 1898; Van Slyke v. Fire Ins. Co., 39 Wis. 390, 20 Am. Rep. 50;Hays v. Lewis, 21 Wis. 663;Sharp v. Appleton (Wis.) 113 N. W. 1090;Murray Hill L. Co. v. Mil. L., H. & T. Co., 126 Wis. 14, 104 N. W. 1003;La Crosse & M. R. Co. v. Seeger, 4 Wis. 268;State ex rel. Jenkins v. Harland, 74 Wis. 11, 41 N. W. 1060;Campbell v. Dick, 80 Wis. 42, 49 N. W. 120;Kaehler v. Dobberpuhl, 60 Wis. 256, 18 N. W. 841; Bigelow on Estoppel, p. 562, c. 19; Lewis on Eminent Domain (2d Ed.) 1145.

Among other references cited upon the part of the respondent were the following: Larson v. Superior S. L. Ry. Co., 64 Wis. 59;²Allen v. McRae, 122 Wis. 246, 100 N. W. 12;Blesch v. C. & N. W. Ry. Co., 43 Wis. 183;Frey v. Duluth, etc., Ry. Co., 91 Wis. 309, 64 N. W. 1038; Mil. & Northern R. R. Co. v. Strange, 63 Wis. 178, 23 N. W. 432;Pomeroy v. C. & M. Ry. Co., 25 Wis. 641; chapter 465, p. 686, Laws 1901.Tullar & Lockney, for appellant.

Ryan, Merton & Newbury (Clarke M. Rosecrantz, of counsel), for respondent.

TIMLIN, J. (after stating the facts as above).

The record in this case is very defective, in not presenting the complete petition for condemnation, nor the franchise ordinance under which the respondent was operating in the streets of Waukesha; but enough can be gathered therefrom to inform the court that it is the same corporation, acting under the same franchise and in the same way, as shown in the companion cases decided herewith. We will assume, therefore, in this case, that the respondent is incorporated for the purpose of carrying on the business of an interurban railway, and also carrying on the business of a street railway; that prior to laying any tracks or placing any appliances in the streets of the city of Waukesha the respondent succeeded to the right of a street railway corporation which had from the city of Waukesha a grant of the right to use certain streets, including Lincoln avenue, for street railway purposes only. The tracks, poles, wires, and appliances of an electric interurban railway are similar to those of an electric street railway. The interurban cars are somewhat larger than ordinary street railway cars, and are equipped with closets; but otherwise they are the same in their construction and operation as electric street railway cars. At the time the tracks were laid and poles and wires placed in the street, the electric interurban railway had no lawful right to construct such tracks or lay such rails for interurban railway traffic without paying damages to the abutting lot owners. Younkin v. M. L., H. & T. Co., 112 Wis. 15, 87 N. W. 861. We must presume that the placing of the tracks, poles, and wires in the street was a lawful rather than an unlawful act, and therefore that they were placed there under the street railway franchise and as street railway tracks, poles, and wires. The respondent, as an interurban electric railway, had no power to condemn its right of way in the street before April, 1901. Although it operated electric interurban railway cars over these tracks since 1898, at the same time doing a street railway business on these tracks, it was, at least prior to April, 1901, and so far as the abutting owners were concerned, a trespasser in its operation of electric interurban cars upon these street railway tracks. After April, 1901, when there was conferred upon it the power of condemning land lying in a street, it continued this dual character of street railway and interurban railway, and conducted upon the tracks and with the appliances in question both kinds of public service. The question arises: When was the interest of abutting owners in Lincoln avenue taken for interurban railway purposes? This affects the motion to dismiss respondent's appeal to the circuit court from the award of commissioners, because, if the taking was prior to 1903, when the plaintiff acquired title, the plaintiff's grantor, Horr, was entitled to substantial damages, and his omission from the appeal would have been erroneous under the rule of Spaulding v. Railway, 57 Wis. 304, 14 N. W. 368, 15 N. W. 482. But if Horr was entitled to no damages in this condemnation, because the taking occurred after he...