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

• Citation: 167 Wis. 185,167 N.W. 266
• Parties: CHICAGO & N. W. RY. CO. v. RAILROAD COMMISSION OF WISCONSIN.
• Decision Date: 03 April 1918
• Court: Wisconsin Supreme Court

167 Wis. 185

167 N.W. 266

CHICAGO & N. W. RY. CO.

v.RAILROAD COMMISSION OF WISCONSIN.

Supreme Court of Wisconsin.

April 3, 1918.

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

Action by the Chicago & Northwestern Railway Company to vacate and enjoin the enforcement of an order of the Railroad Commission of Wisconsin. From an order sustaining a demurrer to the complaint, the plaintiff appeals. Affirmed.

Appeal from an order sustaining a demurrer to the complaint. The action was brought in equity to vacate and enjoin the enforcement of an order of the railroad commission ordering separation of the grades of the streets and of the plaintiff's tracks for a distance of more than two miles, extending from Chicago avenue in the city of Milwaukee westward through portions of the towns of Lake and Greenfield, closing certain of such streets, providing for crossings not at grade at the other streets, and distributing the work between the railway company, the city of Milwaukee, and the towns of Lake and Greenfield. The plaintiff claimed that the order was void because (1) it assumed to close and vacate streets and highways which the railroad commission has no power to do, and (2) the commission, in closing a crossing at grade and substituting this for a crossing not at grade, must provide a separate new crossing not at grade for each existing grade crossing so closed, and cannot legally substitute one new crossing not at grade for several existing crossings at grade. The case having been argued and taken under advisement, a reargument was ordered and had upon four specific questions, viz.:

(1) Is the railroad commission empowered by section 1797--12e et seq. to wholly vacate street crossings, creating no new crossings in place thereof, but compelling the use of other crossings already existing on other streets; or is it empowered only to change the location or grade of crossings, furnishing another crossing in place of each one so changed?

(2) If it has power to wholly vacate crossings as had been done in the present case, is there any authority or duty on the part of the commission or any other body to assess and pay the damages sustained by lot owners on the street who are specially damaged by the vacation?

(3) Can there be a valid vacation of a part of a street without the assessment and payment of damages to lot owners on the street who are specially damaged by the vacation? See Tilly v. Mitchell, etc., 121 Wis. 1, 98 N. W. 969, 105 Am. St. Rep. 1007, and Johnston v. Lonstorf, 128 Wis. 17, 107 N. W. 459.

(4) If the commission had not the power to wholly vacate crossings, as had been done here, must there be vacation of the crossings by the city or town authorities before the commission orders the improvement, or can the improvement be ordered and made dependent on the subsequent vacation of the streets by the proper authorities?R. N. Van Doren, of Milwaukee, for appellant.

W. C. Owen, Atty. Gen. to Jan. 7, 1918, Walter Drew, Deputy Atty. Gen., and Spencer Haven, Atty. Gen. after Jan. 7, 1918 (Ray W. Clarke, of Madison, of counsel), for respondent.

WINSLOW, C. J. (after stating the facts as above).

The order of the railroad commission which is attacked in this action was made upon the supposed authority of sections 1797--12e and 1797--12f, Statutes Wisconsin 1915, which read as follows:

“ Railroad Highway Crossings. Section 1797--12e. (1) Whenever a petition is lodged with the commission by the common council of any city, the village board of any village, the town board of any town, the county board of supervisors of any county, within or bordering upon which a highway or street crosses, or is crossed by a railroad, or within or bordering upon which a highway or street is proposed to be laid out across a railroad, or whenever such petition is so lodged by any railroad company whose track crosses or is about to cross, or is crossed, or about to be crossed by a street or highway, to the effect that public safety requires an alteration in such crossing, its approaches, the method of crossing, the location of the highway or crossing, the closing of a highway crossing, and the substitution of another therefor, not at a grade, or the removal of obstructions to the view at such crossing, or requires the determination of the mode and manner of making such new crossing, and praying that the same may be ordered, it shall be the duty of the commission to give notice to the proper party or parties in interest other than the petitioner, of the filing of such petition, and to proceed to investigate the same, and to order a hearing thereon in the manner provided for hearings in section 1797--12, and after such hearing the commission shall determine what alteration in such crossing, approaches, mode of crossing, location of highway crossing, closing of highway crossing, and the substitution of another therefor not at grade, or removal of obstructions to sight at crossing, if any, shall be made, and by whom made, and in case of new crossings, the mode and manner of making them.

(2) The commission shall fix the proportion of the cost and expense of such alteration, removals, and new crossings, including the damages to any person whose land is taken, and the special damages which the owner of any land adjoining the public street or highway shall sustain by reason of such change in the grade of such street or highway, or by reason of the removal of obstructions to view at such crossings, to be paid by the railroad company or companies, and the municipality or municipalities in interest. In fixing such proportion the commission may order the amount of such cost and expense and damages so apportioned to be paid by the parties against which the apportionment shall be made. Whenever the commission shall have ordered or shall hereafter order a separation of the grade of a railway from the grade of a street or highway in any city, it may, if safe and practicable, and if a necessity exists therefor, order the alteration, restoration and connection of any track serving an industry or industries. Demand for such restoration shall be in writing and filed with the commission within ninety days after the date of the order for the separation of grades or the taking effect of this act, and any such track for which no such demand shall have been made shall be deemed abandoned. If the commission shall order the alteration, restoration and connection of any such track, it shall by its order apportion the cost thereof between the person or persons owning the industry or industries served by such track, the railway company, and the municipality in which said track is located, when in the opinion of the commission such municipality is benefited, or any of them in such proportion as to the commission may seem just and equitable; and the commission shall in its order prescribe the terms and conditions for securing the payment of such cost. The foregoing provision for the alteration, restoration and connection of any such track serving an industry or industries, shall apply to any order of the commission heretofore made, under which order work has not been completed at the time of the passage of this act; provided, that demand therefor is made within ninety days after the passage of this act. The provisions of this subsection are not intended to and shall not affect in any manner pending litigation.”

“ Commission's Initiative Power. Section 1797--12f. The commission may, in the absence of any petition therefor, when in its opinion public safety requires an alteration in any street or highway crossed at grade by any railroad, or railroad belonging to or operated by more than one company, or any change or alteration in such crossing, approaches thereto, mode of crossing, location of highway crossing, closing of highway crossing or removal of obstructions to the sight or view at such crossing, after notice and hearing as provided in section 1797--12, order such alterations in such street, highway, railroad, crossing,...