Chi., M. & St. P. Ry. Co. v. City of Milwaukee

• Decision Date: 04 November 1919
• Citation: 170 Wis. 77,174 N.W. 719
• Parties: CHICAGO, M. & ST. P. RY. CO. v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

170 Wis. 77

174 N.W. 719

CHICAGO, M. & ST. P. RY. CO.

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Nov. 4, 1919.

Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.

Action by the Chicago, Milwaukee & St. Paul Railway Company against the City of Milwaukee. From an order sustaining demurrer to the complaint, plaintiff appeals. Affirmed.

Appeal from an order sustaining a general demurrer to a complaint. The complaint alleged, in substance, that in response to a petition filed with the Railroad Commission by the City of Milwaukee in February, 1910, said commission on the 20th day of May, 1912 (pursuant to the provisions of section 1797--12e, Statutes 1911), made an order for the separation of the railroad and street grades on certain streets in the city of Milwaukee and directed that the Milwaukee Electric Railway & Light Company should do the necessary grading and paving and make all necessary changes in that part of the roadway of the streets included between the outside rails of its tracks and one foot wide on each side thereof; the plaintiff all the work lying within the limits of its right of way and also the work in the public thoroughfares, except that part laid on the electric railway and light company; and the city all the work not laid on the two companies, as well as assume responsibility for any alleged damages to adjacent property or business caused by the issuance or enforcement of the order. The complaint further alleged that by said order and the enforcement thereof the plaintiff's tracks as well as the whole of West Water street for some distance immediately north of the Menominee river were elevated about 2 1/2 feet, thereby making useless certain freighthouses located upon property owned by the plaintiff fronting on said raised portion of West Water street, and thus damaging the plaintiff in the sum of over $19,000, for which sum judgment is demanded. The complaint contained no allegation that there had ever been a grade established on the portion of West Water street so raised, or that the street had ever been actually graded to such grade.

Kerwin and Owen, JJ., dissenting.C. H. Van Alstine and H. J. Killilea, both of Milwaukee, for appellant.

Clifton Williams, City Atty., and Garfield S. Canright, Asst. City Atty., both of Milwaukee, for respondent.

WINSLOW, C. J.

Two contentions are made by the respondent in support of the order of the trial court, namely: (1) The order of the commission was merely an order changing the grade of the street, and, there being no allegation that the street had previously been brought to any established grade, there is no liability; (2) if the order be construed, not as an order changing the grade, but as an order condemning land for railway purposes, then there is no liability because the railroad company cannot collect damages of the city resulting from condemning its own property. The trial judge in sustaining the demurrer based his conclusion on the first proposition and did not pass on the second. The two propositions will be briefly considered.

[1] I. The question whether the raising or lowering of the surface of a city street resulting from the separation of railroad and street grades is in legal effect a change of grade by the municipal government, or a taking of land for railway purposes by the railway company, was met and squarely decided in the case of Pabst v. Ry. Co., 157 Wis. 158, 14 N. W. 46. It was there held that it was a taking of land by the railway company for railway purposes, and it was further held that the city of Milwaukee had no power under its charter to change the grade of a street in order to enable a railway company to maintain its tracks in or across the street, for the reason that this was taking of land for railway purposes. This ruling was expressly reaffirmed in Eisler v. Ry. Co., 163 Wis. 186, 157 N. W. 534. It was made after very careful study and with appreciation of its great importance, and we see no good reason for disturbing it now. It commends itself to our reason now, as it did then, and we adhere to it. The application of that rule to the present case results necessarily in rejection of the city's claim that this was a mere municipal change of grade for which, under the rule stated in Walish v. Milwaukee, 95 Wis. 16, 69 N. W. 818, no damages would accrue to adjoining property owners because the complaint does not allege the previous establishment of a grade and the actual grading of the street to such grade.

It is true that in both of the cases cited it appeared that there had been such previously established grade actually worked up to, but it is entirely certain that this fact cut no figure with the decision. Plainly it could not. If the act was a taking for railway purposes in case of a street with an established grade, it must be just as much so in the case of a street or highway where no legal grade has been established. It cannot assume the form of a mere municipal improvement on one street and a railway taking on the next, depending on whether a grade has previously been established and worked up to or not. Such a rule would be absurd.

It is true, also, that in the cases cited the proceedings were begun before the enactment of chapter 540, Laws of 1909 (sections 1797--12e and 1797--12f, Stats. 1917), authorizing the Railroad Commission to order separation of grades, which is the chapter under which the proceedings in the present case are brought, but were begun and carried to completion under the provisions of the Milwaukee charter. That fact, however, only makes the cases stronger authority for the proposition that the taking for grade separation purposes is always a railroad taking, for in those cases the city had actually passed an ordinance formally changing the grade, whereas in the present case there has been no action by the city, but the change was made by the Railroad Commission in the course of the proceedings to separate the grades. In legal effect the proceedings in those cases and the proceedings under the Railroad Commission Law used in the present case are essentially the same. If the change of grade is a railroad taking in one case, it is necessarily so in the other. It is significant also to note that the Legislature in passing chapter 540, Laws of 1909, sections 1797--12e and 1797--12f, Stats. 1917), provided that railroad companies might take land by condemnation for the purposes of the law, thus indicating that the legislative idea as to the character of the act agreed with the idea of the court as expressed in the Pabst Case.

The case of Henry v. La Crosse, 165 Wis. 625, 162 N. W. 174, is much relied upon to sustain the contention now under discussion, but it seems very plain to us that it does not do so. In that case no railroad was raised or lowered and no actual change made in the street for railroad purposes; the separation of grades had been made in 1883, and the grade of a certain viaduct over the railroad then established; the approaches of the viaduct then built, however, did not come up to the established grade, and the Railroad Commission in ordering the building of a new viaduct required that the approaches be brought up to the grade established in 1883. The case was decided in the trial court and in this court on the ground that there had been in legal effect no change in the street, but simply a bringing of the street up to the grade established in 1883. The decision was plainly right, but just as plainly it does not affect this case.

It is suggested that, because the Railroad Commisssion directed that the city be responsible for damages to adjacent property resulting from the change in the surface of the street, the change becomes in legal effect a change of grade by the municipality. The suggestion is not without some weight, but we are satisfied that it cannot prevail. Reference to the statute (section 1797--12e, subd. 2) shows that the legislative idea was that the costs of the whole work, including damages for land actually taken and damages for change of grades, should be aggregated, and that a certain proportion of such aggregate sum which the railway company or companies and the municipality should each bear should be fixed. In the present case certain parts of the work were parcelled out to each of the parties. We do not intimate or hold that this affected the legality of the proceeding; we do not think it did; but we refer to the fact that the statute speaks of the proportion of a gross sum simply to show that the requirement of the commission that the city pay the damages to adjacent property owners must logically be construed as simply the means used by the commission to determine the city's proportion of the gross sum, and not as a requirement that the city pay such damages as damages because of any liability therefor. It amounts to no more than as if the commission had directed that the city pay 10 per cent. of the gross sum and it turned out in the end that the damages to property owners amounted to just 10 per cent.

[2] II. The second contention made by the city must, however, be sustained. The real estate taken is the real estate of the railroad company. The order of the commission to the effect that the city assume responsibility for alleged damages to adjacent property did not create any liability not theretofor existing. Henry v. La Crosse, supra. When property is taken for railroad purposes the only liability created is the liability to make compensation for it, and that is a liability of the railroad company which does the taking. But when a railway company takes its own property for railway purposes, it seems absurd to speak of there being any liability to pay for it. Paying for it would simply be taking the money out of one pocket and putting it in another. But the city only assumes responsibility for liabilities existing by reason of the taking for railroad purposes, and, as there is no such real liability so...