Chi. & N. W. Ry. Co. v. R.R. Comm'n of Wis.

• Decision Date: 09 May 1922
• Citation: 178 Wis. 485,188 N.W. 86
• Court: Wisconsin Supreme Court
• Parties: CHICAGO & N. W. RY. CO. v. RAILROAD COMMISSION OF WISCONSIN.

178 Wis. 485

188 N.W. 86

CHICAGO & N. W. RY. CO.

v.RAILROAD COMMISSION OF WISCONSIN.

Supreme Court of Wisconsin.

May 9, 1922.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by the Chicago & North Western Railway Company against the Railroad Commission of Wisconsin to review an order of the Commission. Judgment of dismissal, and plaintiff appeals. Affirmed.Samuel H. Cady, of Milwaukee (C. H. Van Alstine, of Milwaukee, amicus curiæ, by request of appellant), for appellant.

William J. Morgan, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for respondent.

ROSENBERRY, J.

This is an action to review an order of the Railroad Commission made pursuant to the provisions of chapter 255 of the Laws of 1919.

Inasmuch as the only points raised upon this appeal relate to the reasonableness of the order and the validity of the statute under which it was made, we shall not set out in detail the proceedings, but refer only to such part thereof as is necessary to present the questions raised here.

Sheridan road is a much-traveled public highway, being one of the main thoroughfares between Milwaukee and Chicago, passing through the cities of Racine, Kenosha, Waukegan, and other municipalities. About three-quarters of a mile south of Lake Park, a residential section of Racine, Wis., this highway crosses the plaintiff's tracks upon which it operates its passenger trains between Milwaukee and Chicago, crossing from the easterly side of such tracks to the westerly side. At a point 2,800 feet southerly from this crossing the highway again crosses plaintiff's railway tracks from the westerly side to the easterly side. The double tracks of the Milwaukee Electric Railway & Light Company ran parallel with and on the easterly side of the plaintiff's right of way between these two crossings, the two rights of way adjoining. The Wisconsin State Highway Commission proposed to construct a new highway between these crossings by moving the lines of the Milwaukee Electric Railway & Light Company to the east a sufficient distance to permit of the construction of a new highway along the easterly side of the plaintiff's right of way so that the highway when constructed would be between the right of way of the plaintiff and the right of way of the electric company as relocated. By this construction a large part of the public travel over the two crossings would be diverted, and the dangers incident to the traffic crossing the railway tracks, upon which trains were operated at a high speed, would be eliminated.

Prior to the improvement in question each of the crossings were protected day and night by flagmen. The proposed improvement of the highway is what is known as a federal act project, under which the federal government pays one-third of the expense, the state one-third, and the county one-third. The Railroad Commission ordered that after the construction of the new highway the plaintiff should discontinue the maintenance of flagmen at the crossings in question, and in lieu thereof install electric wigwag signals. The situation in regard to the crossings is thus stated in the order of the Commission:

“The two crossings involved in this proceeding are both acute angle crossings. The view of trains from the approaches is not seriously obstructed. However, the acuteness of the angle of crossing makes it necessary to look back over one's shoulder to ascertain whether a train is approaching from behind. At the south crossing the railway is on a fill, and the highway approaches ascend to the tracks from both directions. Recognizing the fact that, on account of the high-speed railway traffic and the heavy highway traffic, the crossings were more than ordinarily dangerous, the railway company voluntarily established continuous protection by flagmen at each crossing. Under present wage conditions the annual cost of this protection is $5,040. The crossings are about 2,800 feet apart; the highway forming a loop west of the tracks between these points.”

The Railroad Commission found that by doing away with the flagmen and installing electric signals upon present conditions a saving of $4,410 per annum would be made by the company, which, if capitalized on a 10 per cent. basis would amount to $44,100, and, if capitalized at 6 per cent., would amount to $73,500. The Commission found, taking into consideration all of the elements of benefit, that the plaintiff's benefit as a result of the relocation would be not less than $40,000 nor more than $90,000.

The Commission further found that the extra expense over and above the cost of improving the existing route with the grade crossings retained which will be incurred in the relocation project for the purpose of avoiding the crossings is approximately $29,000, and ordered the plaintiff to pay to the treasurer of the state of Wisconsin said sum.

The authority of the Commission to proceed in the premises is conferred by section 1797--12e, subd. 5, Wis. Stats.:

“The Commission, upon petition of the Wisconsin Highway Commission, the county board of any county, the common council of any city, the village board of any village or the town board of any town to the effect that one or more of them have undertaken or propose to undertake to relocate an existing highway, to improve an existing highway, or to construct a new highway in such manner as to eliminate an existing highway grade crossing or crossings with any railroad, or so as to permanently divert a material portion of the highway traffic from an existing highway grade crossing or crossings with any railroad, shall issue notice of investigation and hearing as provided in section 1797--12, and if upon such hearing the Commission shall find that the railroad company or companies in interest will be benefited by said highway relocation, improvement or new construction, the Commission shall order said railroad company or companies to pay to the municipality or municipalities in interest such sum of money as the Commission shall find to be reasonably equivalent to the benefits received, provided, however, that if said highway relocation. * * *”

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