Chi. & N. W. Ry. Co. v. Oshkosh, A. & B. W. R. Co.

• Decision Date: 02 June 1900
• Citation: 107 Wis. 192,83 N.W. 294
• Court: Wisconsin Supreme Court
• Parties: CHICAGO & N. W. RY. CO. v. OSHKOSH, A. & B. W. R. CO.

107 Wis. 192

83 N.W. 294

CHICAGO & N. W. RY. CO.

v.OSHKOSH, A. & B. W. R. CO.

Supreme Court of Wisconsin.

June 2, 1900.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Petition by the Oshkosh, Algoma & Black Wolf Railroad Company for the condemnation of a strip of land across the right of way of the Chicago & Northwestern Railway Company. From a judgment dismissing an appeal from the award of commissioners, defendant appeals. Reversed.

On the 28th day of June, 1898, articles of incorporation of the Oshkosh, Algoma & Black Wolf Railroad Company were filed in the office of the secretary of state, under section 1820, Sanb. & B. Ann. St. The articles stated that the corporation was formed “for the purpose of constructing, maintaining and operating a railroad for public use in the conveyance of persons.” The railroad to be constructed by the corporation so attempted to be formed was stated in the articles to be about 1.7 miles in length, running from a point of junction with the line of the Citizens' Traction Company (an electric street-railway line) at the city limits of the city of Oshkosh, through the towns of Algoma and Black Wolf, in Winnebago county, to a point in section 1 on the shores of Lake Winnebago, in said town of Black Wolf. Immediately after the filing of its articles, the new corporation filed in the circuit court of Winnebago county a petition for the purpose of condemning a strip of land 16 feet in width across the right of way of the main track of the Chicago & Northwestern Railway Company; such strip being a part of a highway which crosses said Chicago & Northwestern right of way, and being desired for crossing purposes. Commissioners were appointed, who found it necessary to take the 16-foot strip for crossing purposes, and who also determined the points and manner of the crossing, and authorized the carrying of trolley wires over the crossing, and fixed the compensation to be made for the right of way and crossing. The Chicago & Northwestern Railway Company appealed from the award, and, upon the trial of the appeal, moved to dismiss the proceedings upon various grounds,--among others, upon the ground that the petitioner was not a corporation entitled to condemn the lands of the appellant, or to cross its railway. The objection being overruled, the appellant declined to introduce any evidence, and the appeal was dismissed, from which judgment of dismissal the Chicago & Northwestern Railway Company appeals.Fish, Cary, Upham & Black and Edward M. Hyzer, for appellant.

Miller, Noyes, Miller & Wahl, for respondent.

WINSLOW, J. (after stating the facts).

Several questions are presented by the record in this case, but we shall consider only one of them, for the reason that the view which we feel compelled to take of that question renders it unnecessary, and even improper, to discuss the others. The question so presented, and which will be considered, is whether, under section 1820, Sanb. & B. Ann. St. (now section 1820, Rev. St. 1898), a railroad corporation for the conveyance of persons only can be legally formed. If this question must be answered in the negative, then there was no jurisdiction to entertain the attempted condemnation proceedings, because the petitioner was formed for the sole purpose of conveying persons. We entertain no doubt that this question must be so answered. Section 1820 provides that: “Any number of persons not less than five may form a corporation for the purpose of constructing, maintaining and operating a railroad for public use in the conveyance of persons or property * * * by making articles of organization in which shall be stated: (1) The name of the corporation; (2) the place from and to which such railroad is to be constructed or maintained and operated as the case may be,”--and certain other details as to the length, location, capital stock, and number of directors of the corporation, which are unnecessary to be stated at length. Such articles are required to be filed...