City of Oshkosh v. E. Wis. Elec. Co.

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: ESCHWEILER
• Citation: 178 N.W. 308,172 Wis. 85
• Decision Date: 23 June 1920
• Parties: CITY OF OSHKOSH v. EASTERN WISCONSIN ELECTRIC CO.

172 Wis. 85
178 N.W. 308

CITY OF OSHKOSH
v.
EASTERN WISCONSIN ELECTRIC CO.

Supreme Court of Wisconsin.

June 23, 1920.

Appeal from Circuit Court, Winnebago County; George W. Burnell, Judge.

Action by the City of Oshkosh against the Eastern Wisconsin Electric Company. From an order sustaining plaintiff's demurrer to its answer, defendant appeals. Affirmed and remanded.

Plaintiff sues to recover the sum of $1,000 alleged to be due July, 1917, from the defendant as successor to the Eastern Wisconsin Railway & Light Company pursuant to the terms of a certain ordinance granted to and the acceptance thereof by such predecessor in 1903. Defendant answered, and plaintiff's demurrer to such answer was sustained by the trial court.

[178 N.W. 309]

The following are the facts:

November 10, 1903, the common council of plaintiff granted to the Eastern Wisconsin Railway & Light Company a franchise to extend its interurban electric railroad from the city of Fond du Lac into the city of Oshkosh.

The ordinance granted the right to lay tracks and operate its cars upon certain streets in the city of Oshkosh and over and upon a bridge on Main street in said city.

Among the terms of said ordinance was a provision by which the said Eastern Wisconsin Railway & Light Company, its successors and assigns, was to pay the city of Oshkosh the sum of $35,000 in annual payments of $1,000 on or before the 1st day of July of each of the following 35 years.

January 19, 1904, the said Railway & Light Company by its officers accepted said franchise by a writing which contained, among other things, the following:

“And the said Eastern Wisconsin Railway & Light Company does further specifically agree and bind itself, its successors and assigns, to the payment of the full sum of $35,000 as provided in said ordinance; that is to say, does hereby agree to pay said sum in equal annual installments of $1,000, each installment to be paid on or before the 1st day of July in each year during the term of said franchise.”

Such annual payments were made up to and including July 1, 1916.

It is alleged in the complaint that the consideration for the annual payment of $1,000 so provided for was agreed to be for the use of said streets and to partially compensate the plaintiff for the wear and tear on said Main street bridge resulting from the operation of said interurban cars over said bridge. No reference is made in the amended answer of defendant to the foregoing allegation other than as may be embraced in the general denial.

March 1, 1917, the defendant, Eastern Wisconsin Electric Company, succeeded to the rights of the Eastern Wisconsin Railway & Light Company under the franchise aforesaid, and by purchase became the owner of the property then owned by said Eastern Wisconsin Railway & Light Company, including the interurban railway, and has operated and intends to continue operating the same in the future.

On March 8, 1917, the defendant surrendered such franchise so acquired by it together with others and received by operation of law in lieu of said franchises an indeterminate permit under section 1797t3, Stats.

Defendant alleges that it is now conducting and operating its street and interurban railway business in the city of Oshkosh by virtue of said indeterminate permit only, and not by virtue of the foregoing or any franchise, license, or permit granted by any ordinance of the city of Oshkosh.

To the amended answer the plaintiff demurred, and...