Chi. & N. W. Ry. Co. v. Milwaukee, R. & K. Elec. Ry. Co.

• Decision Date: 07 April 1897
• Parties: CHICAGO & N. W. RY. CO. v. MILWAUKEE, R. & K. ELECTRIC RY. CO.
• Court: Wisconsin Supreme Court

95 Wis. 561

70 N.W. 678

CHICAGO & N. W. RY. CO.

v.MILWAUKEE, R. & K. ELECTRIC RY. CO.

Supreme Court of Wisconsin.

April 7, 1897.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by the Chicago & Northwestern Railway Company against the Milwaukee, Racine & Kenosha Electric Railway Company for an injunction. From an order denying a motion for a preliminary injunction, plaintiff appeals. Reversed.

It appears from the record that the plaintiff is a corporation organized under the laws of this state, and owns and operates by steam power a line of railway, consisting of two main tracks from Milwaukee to Chicago; that said railway passes through the village of South Milwaukee and the cities of Racine and Kenosha, and is engaged in the carriage of passengers and freight; that within the village of South Milwaukee the plaintiff's said railroad tracks cross Milwaukee avenue, one of the main public streets therein; that Milwaukee avenue runs in an east and west direction, and crosses the railroad tracks nearly at right angles; that immediately south of the avenue is the plaintiff's passenger station and depot grounds connected therewith, which station and grounds are necessarily used by the plaintiff in connection with its business and railroad, and that the plaintiff is the owner of the whole thereof in fee simple; that such depot grounds abut upon the south side of the said avenue for the distance of 200 feet on the east side of its tracks; that on the north side of said avenue, and immediately east of the railroad tracks, the plaintiff is the owner in fee simple of a strip of land or right of way 50 feet in width, abutting upon the north side of said public street; that the plaintiff is the owner in fee simple of the lands so within the public street to the center thereof on the south side for a distance of 200 feet and on the north side for a distance of 50 feet, subject, however, to the easement vested in the public therein, and the servitude necessarily incident to its occupation and use as and for a public highway; that the defendant, at the dates and times herein mentioned, was, and is now, a corporation organized and existing under and by virtue of the laws of this state, having its principal office and place of business at Racine; that it appears by the articles of association of the defendant that it is authorized to build and operate a street railway with a track or tracks and cars to be run thereon for the purpose of carrying passengers, merchandise, personal baggage, mail, and express from a point within the village of South Milwaukee northerly into and through the village of Cudahy, and the towns of Lake and Oak Creek, in the county of Milwaukee, and southerly and into and through the town of Oak Creek aforesaid, and into and through the towns of Caledonia and Mt. Pleasant, and the city and county of Racine, and into and through the towns of Somers and Pleasant Prairie, and the city and county of Kenosha; that the defendant, at the time of the commencement of this action, was and is engaged in the construction of a railroad in and through the village of South Milwaukee and along said Milwaukee avenue in said village, and has reached the property, lands, right of way, and tracks of the plaintiff, and did have men at work upon the construction of its roadbed in said street, and the laying of ties and rails thereon, and had threatened, and still threatens, that it will construct its road and lay its ties and tracks in said street over and across the above-described lands of the plaintiff and its railroad tracks on said lands, and string electric wires over the tracks for the purpose of furnishing electric power for the running of its cars; that until restrained it had actually entered upon the said lands of the plaintiff abutting on said avenue, and had excavated therein, and made grades thereon, for the purpose of constructing its road, and had placed heavy ties on said grade for the purpose of laying the rails of its tracks thereon; that the defendant intends to use said railroad, when constructed, for the transportation of freight, mails, and express matter, as well as for passengers; that by its articles of association the defendant has the right to use locomotive engines and trains propelled by electric or any other power; that the defendant admits that it is its object and purpose, if it may so lawfully do, to build and operate a street-railway system for the purpose of carrying passengers and personal baggage and other merchandise, mail, and express, under the authority of the proper municipal officers, and subject to such rules and regulations and the payment of such license fees as they may from time to time prescribe, over and along the public streets and highways within the village of South Milwaukee aforesaid, and over and along the highways north and south of said village; that the village board of South Milwaukee, by ordinance, granted authority and permission to the defendant, its successors and assigns, to lay and maintain single or double tracks for a street railway with all necessary switches, curves, turnouts, Y's, poles, wires, and other appliances and conveniences usually employed in the operation of a street-railway system using electric or other power excepting steam, over and upon, along and across those certain streets, bridges, culverts, and public places within the corporate limits of the village described, including Milwaukee avenue, and to operate thereon a street-railway system with electric or other power excepting steam for the carrying of passengers, personal baggage, merchandise, mail, and express for the term of 50 years; that the supervisors of the town of Oak Creek had given to the defendant like authority; that the plaintiff has not given the defendant its consent or permission to construct such railway upon or across its said lands and railroad, or upon said street in front of said lands, nor to enter upon said lands of the plaintiff in said street for the purpose of grading the same, or laying ties or constructing its railway thereon, or stretching electric wires over and across the same, nor has the defendant entered into any agreement with the plaintiff company as to how and upon what terms such crossing, if made at all, shall be made, or any agreement touching plaintiff's damages on account of such crossing by defendant's road; nor has the defendant taken any steps, by condemnation or otherwise, to acquire the right to cross the plaintiff's said lands and railroad in the manner and for the purpose in which it proposes to cross the same; that the defendant threatens and intends to, and the plaintiff believes that it will, enter upon the plaintiff's said land, and cross its said railroad with the defendant's railroad now being constructed, without the consent of the plaintiff, and without making any compensation to it, unless restrained by the order and injunction of the court; that if the defendant shall construct and operate its railroad over and upon and along the plaintiff's lands and railroad, serious and irreparable damage and injury will necessarily result to the plaintiff in its use and enjoyment of said lands and railroad, and in the exercise of its rights and franchises connected therewith; that November 17, 1896, the plaintiff commenced this action to perpetually enjoin the defendant from constructing its said track over and across or upon the said land and the railroad tracks of the plaintiff, or any part thereof, and from in any manner working upon or interfering therewith, and from proceeding with the laying of the track of the defendant over and across the railway and lands of the plaintiff, or in any manner interfering with the same during the pendency of this action, or until the further order of the court; that January 9, 1897, the plaintiff's motion for preliminary injunction was denied, with $10 costs of motion. From that order, and the whole thereof, the plaintiff brings this appeal.

Fish & Cary, for appellant.

Kearney, Phipps & Thompson and Charles Quarles, for respondent.

CASSODAY, C. J. (after stating the facts).

Milwaukee avenue, at South Milwaukee, runs east and west, and the plaintiff's railroad tracks cross it nearly at right angles. Its depot grounds at that place extend east from such tracks along the south side of the avenue, and abutting thereon, for a distance of 200 feet. On the north side of the avenue, and abutting thereon, and immediately east of said tracks, the plaintiff owns a strip of land or right of way 50 feet in width. The answer expressly admits “that the plaintiff is the owner of the lands” so described, “within said public street, and to the center line thereof,” on both...