City of Oshkosh v. Milwaukee & L. W. Ry. Co.

• Decision Date: 15 October 1889
• Citation: 43 N.W. 489,74 Wis. 534
• Parties: CITY OF OSHKOSH v. MILWAUKEE & L. W. RY. CO.
• Court: Wisconsin Supreme Court

74 Wis. 534

43 N.W. 489

CITY OF OSHKOSH

v.MILWAUKEE & L. W. RY. CO.

Supreme Court of Wisconsin.

Oct. 15, 1889.

Appeal from circuit court, Winnebago county.

Action by city of Oshkosh against the Milwaukee & Lake Winnebago Railway Company for an injunction, etc. A demurrer to the complaint was overruled, and defendant appeals.Chas. W. Felker, ( D. S. Wegg and Howard Morris, of counsel,) for appellant.

M. H. Eaton, City Atty., and H. B. Jackson, for respondent.

COLE, C. J.

This case, in principle, is ruled by the decision in Town of Jamestown v. Railway Co., 69 Wis. 648, 34 N. W. Rep. 728. In that case this court sustained a bill brought by the town to compel the railroad company to restore a public highway, which it had practically destroyed in constructing its road, to its former condition of usefulness for public travel. The jurisdiction of the court was rested upon the ground that a court of equity would compel a railroad corporation to perform the plain statutory duty of restoring the highway which it had invaded to its former state of usefulness, as a condition to using it for the purposes of its road-bed. This duty is imposed by statute in plain and positive language, and a railroad corporation has no warrant in law to invade a highway with its track without complying with the law which grants the privilege for it to do so. It is contumacious and wrongful conduct for the officers of a railroad corporation to occupy a public highway with its track, practically destroying the street for purposes of public travel, and then defy or disregard all law and all authority invoked to compel them to repair the wrong which they have done the public. The courts would be impotent indeed if they could not correct such flagrant invasions of public right.

The legislature has seen fit to authorize a railroad company to construct its track across and along a highway, subject to the express condition that it restore the highway to its former state of usefulness, or that it does not materially impair the highway for public travel, and maintains it in that condition afterwards. But the duty to restore and keep in repair is coupled with the privilege to use and occupy the highway for its track; and, if the corporation will not perform its duty, it should not enjoy the easement granted. These considerations are in accord with the most obvious principles of justice and public rights. The slightest attention to the facts stated in the complaint will...