City of Milwaukee v. Milwaukee Elec. Ry. & Light Co.

• Decision Date: 14 December 1920
• Citation: 173 Wis. 400,180 N.W. 339
• Court: Wisconsin Supreme Court
• Parties: CITY OF MILWAUKEE v. MILWAUKEE ELECTRIC RY. & LIGHT CO. ET AL.

173 Wis. 400

180 N.W. 339

CITY OF MILWAUKEE

v.MILWAUKEE ELECTRIC RY. & LIGHT CO. ET AL.

Supreme Court of Wisconsin.

Dec. 14, 1920.

Appeal from Circuit Court, Milwaukee County; E. T. Fairchild, Judge.

Action by the City of Milwaukee against the Milwaukee Electric Railway & Light Company and another, to enjoin the named defendant from carrying on its street railway system interurban passengers and freight. From a judgment granting the relief prayed for, the named defendant appeals. Reversed and remanded.

Action by the City of Milwaukee in its governmental capacity, and also in its proprietary capacity, as owner of a large number of lots abutting upon streets over which the defendant operates its street railway system, to enjoin the defendant, which has no interurban franchise in the city of Milwaukee, from carrying upon its street railway system in the city of Milwaukee passengers brought from or carried to points outside of the corporate limits of the city. The trial court defined an interurban passenger as one whose passage starts at a point within the city for a destination outside of the city limits, or starts from a point outside of the city limits and comes to a point within the city limits. Based upon this definition of an interurban passenger, he found that interurban service was rendered wherever an interurban passenger was carried and found within what specific points on each of defendant's lines within the city interurban service was rendered. As conclusions of law the court held: (a) That the city in its governmental capacity was entitled to an injunction restraining the defendant from operating cars carrying interurban passengers between the points and over the portions of the line described in the findings of fact; (b) that the city in its capacity as owner of the properties described in the findings of fact was entitled to an injunction restraining the defendant from operating cars carrying interurban passengers in front of such properties; and (c) the city is entitled to an injunction, restraining the carriage of freight across the city limits, as found in finding No. 2. From a judgment entered accordingly, the defendant appealed.Van Dyke, Shaw, Muskat & Van Dyke, of Milwaukee (Miller, Mack & Fairchild, of Milwaukee, of counsel), for appellant.

Clifton Williams, City Atty., of Milwaukee, for respondent.

VINJE, J. (after stating the facts as above).

[1] Defendant's contention that the court has no jurisdiction of the action because it necessarily prevents the enforcement of an order of the Railroad Commission is not tenable. It is the function of the Railroad Commission to establish reasonable street car rates. It is not concerned with the question of whether or not the street car company has the requisite franchise to operate its cars. That is purely a judicial question. The granting of the franchise is a legislative act, which neither the Railroad Commission nor the courts can interfere with. Whether defendant needs a further franchise than it has to carry on its business within the limits of Milwaukee is the main question for determination in this case, and it is a judicial question within the jurisdiction of the trial court.

[2] Defendant also claims that the city in its governmental capacity has no power to maintain this action, because it is said the city has no rights or duties with respect to the unlawful exercise of franchise, since such right rests solely with the state to be asserted in an action of quo warranto. That is true. But this is not an action to annul a franchise. The city is charged with the duty of maintaining streets for lawful travel, and as an incident of that duty it has the right to inquire if a certain kind of travel is lawful, and, if not, to have it prohibited by injunction. It claims defendant has no franchise for interurban traffic, and that it is carrying on such traffic on the streets of the city. Streets are dedicated for lawful travel, and a city has the right to see that the purpose of the dedication is not departed from by the unlawful use of streets.

[3] As the owner of a large number of lots abutting upon streets on which defendant's tracks are laid, the city in its proprietary capacity may maintain this action to prohibit any burden additional to a lawful street use being imposed upon them without compensation. Chicago & N. W. Ry. Co. v. Milwaukee, R. & K. Electric Co., 95 Wis. 561, 70 N. W. 678, 37 L. R. A. 856, 60 Am. St. Rep. 136;Younkin v. Milwaukee L., H. & T. Co., 112 Wis. 15, 87 N. W. 861;Beloit, D. L. & J. Ry. Co. v. Macloon, 136 Wis. 218, 116 N. W. 897;Schuster v. Milwaukee E. R. & L. Co., 142 Wis. 578, 126 N. W. 26. For, as was said in Town of Milwaukee v. City of Milwaukee, 12 Wis. 101:

“In its character of a political power, or local subdivision of government, it is a public corporation, but in its character of owner of property, it is a private corporation, possessing the same rights, duties, and privileges as any other.”

See, also, Eau Claire Dells Imp. Co. v. Eau Claire, 179 N. W. 2.

[4][5][6][7] In view of what has been held it cannot be said that the city's case is without equity if it can establish an unlawful use of its streets, either as to its governmental or proprietary capacity. The fact that it has for a considerable period of time, upwards of 20 years the court found, acquiesced in such use, if any, does not estop it from now asserting its claim. Wilbur L. Co. v. Milwaukee L., H. & T. Co., 134 Wis. 352, 114 N. W. 813;Schuster v. Milwaukee E. R. & L. Co., 142 Wis. 578, 126 N. W. 26. In its proprietary capacity it could not resort to condemnation in the absence of a franchise for interurban traffic. Beloit, D. L. & J. R. Co., v. Macloon, 136 Wis. 218, 116 N. W. 897. The use of the streets by the defendant without a franchise, where one is needed, constitutes a continuing trespass. Id. As against the city in its governmental capacity, or as against the public, the continuing trespass, if any, has not ripened into a right.

Before we consider the question of whether or not the defendant has made a use of the city's streets not warranted by its franchise, it is desirable to state briefly what our court has held upon this and related questions.

[8] It has held: (a) That city streets are subject to ordinary surface street railway service without compensation to the owners of abutting lands. Hobart v. Milwaukee City R. Co., 27 Wis. 194, 9 Am. Rep. 461;Chicago & N. W. Ry. Co. v. Milwaukee, R. & K. Electric R. Co., 95 Wis. 561, 70 N. W. 678, 37 L. R. A. 856, 60 Am. St. Rep. 136;La Crosse City Railway Co. v. Higbee, 107 Wis. 389, 83 N. W. 701, 51 L. R. A. 923;Beloit, D. L. & J. R. Co. v. Macloon, 136 Wis. 218, 116 N. W. 897.

[9] (b) That country highways or streets outside of city limits are not subject to ordinary surface street railway service without extra compensation to the owners of abutting lands who thereby suffer serious impairment of their access thereto. Zehren v. Milwaukee Electric R. & L. Co., 99 Wis. 83, 74 N. W. 538, 41 L. R. A. 575, 67 Am. St. Rep. 844; and

[10] (c) That neither city streets nor country highways are subject to interurban surface railway service without compensation to the owners of abutting lands. Chicago & N. W. Ry. Co. v. Milwaukee, R. & K. Electric R. Co., 95 Wis. 561, 70 N. W. 678, 37 L. R. A. 856, 60 Am. St. Rep. 136;Younkin v. Milwaukee L., H. & T. Co., 120 Wis. 477, 98 N. W. 215;Beloit, D. L. & J. R. Co. v. Macloon, 136 Wis. 218, 116 N. W. 897;Schuster v. Milwaukee E. R. & L. Co., 142 Wis. 578, 126 N. W. 26.

None of the cases define what constitutes passenger street railway service, nor what constitutes passenger interurban railway service, though it is apparent that the additional burden must grow out of some difference in the service. In Schuster v. Milwaukee E. R. & L. Co., 142 Wis. 578, 126 N. W 26, it was found that the interurban cars were larger than street cars; that they usually ran at a greater speed, and often in trains of two or more, and stopped after reaching city limits to discharge only interurban passengers, and had a terminal station for the discharge of most of its passengers. This constituted a substantial difference from ordinary street car service, especially as to the discharge of passengers. In Beloit, D. L. & J. R. Co. v. Macloon, the interurban road had not secured from the city council a right to use the street for interurban...