City of Superior v. Roemer

• Decision Date: 24 April 1913
• Citation: 154 Wis. 345,141 N.W. 250
• Parties: CITY OF SUPERIOR v. ROEMER ET AL.
• Court: Wisconsin Supreme Court

154 Wis. 345

141 N.W. 250

CITY OF SUPERIOR

v.ROEMER ET AL.

Supreme Court of Wisconsin.

April 8, 1913.

Dissenting Opinion, April 24, 1913.

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

Action by the City of Superior against John H. Roemer and others, constituting the Railroad Commission of Wisconsin, and others. From a judgment for defendants, plaintiff appeals. Reversed.

Winslow, C. J., and Barnes, J., dissenting.

This action was commenced in Dane county circuit court under section 1797--16, Stats., to review the proceedings had before the Railroad Commission of Wisconsin, and vacate, set aside, and alter that portion of the order of the Railroad Commission providing that the city of Superior, appellant, pay 20 per cent. of the cost of construction of the viaduct and approach over the railroad companies' yards and tracks on Belknap street in Superior, and to relieve the city of Superior from paying any of the cost of the viaduct or damages to property.

The court made the following findings:

“(1) That Belknap street crosses the tracks of all of defendant railway companies in the city of Superior at grade.

(2) That in January, 1910, the plaintiff city began a proceeding before the Railroad Commission of Wisconsin under section 1797--12e of the Statutes, to compel the defendant railway companies to construct a viaduct over their tracks where the same are crossed by Belknap street; that thereafterthe said Commission made an order directing the construction of such a viaduct and apportioning the expense of constructing the same; that said order provided that the plaintiff city should pay 20 per cent. of such cost.

(3) That the charter of the plaintiff city passed by the Legislature in 1889 (Laws 1889, c. 152) provided that the city ‘shall have authority * * * to require the railroad companies to construct and maintain at their own expense * * * viaducts * * * as may be necessary.’ That the plaintiff city has never taken any action under said charter to compel the building of a viaduct over the tracks of the defendant railway companies on Belknap street before January, 1910.

(4) That in 1895 the plaintiff city passed an ordinance providing for the construction of a viaduct on Belknap street over the tracks of the Great Northern Railway Company which lie adjacent to the tracks of the Northern Pacific Railway Company; that during said year of 1895 an ordinance was also passed which authorized the Northern Pacific Railway Company to continue such viaduct over its tracks adjacent to the right of way of the Great Northern Railway Company in Belknap street at any time after three years from the date of the passage of such ordinance; that said ordinance contained an agreement on the part of the Northern Pacific Railway Company to permit the city to build an approach to the viaduct over the tracks of the Great Northern Railway Company in Belknap street where the same passed through lands owned by the Northern Pacific Railway Company, without any claim for damages on the part of the Northern Pacific Railway Company; that in said ordinance the city of Superior agreed that in case the Northern Pacific Railway Company constructed a viaduct over its tracks on Belknap street the said city would at its sole cost and expense construct the necessary approaches for said viaduct and the necessary abutments or supports for the same, and that it would also remove the approaches to the viaduct over the tracks of the Great Northern Railway Company which it had constructed in Belknap street where the same passes through lands owned by the Northern Pacific Railway Company; that said ordinance was accepted by the Northern Pacific Railway Company, and became a binding contract between the said city and the said railway company.

(5) That the order of the Railroad Commission apportioning 20 per cent. of the cost of said viaduct to the city of Superior is a reasonable order.

(6) That said order is not unlawful, and that it is not wholly unwarranted in law.”

The court concluded “that the plaintiff's complaint be dismissed, with costs in favor of defendant to be taxed according to law.”

Judgment was entered dismissing the plaintiff's complaint with costs, from which this appeal was taken.

H. V. Gard and T. L. McIntosh, both of Superior, for appellant.

Hanitch & Hartley, of Superior (C. W. Bunn and Emerson Hadley, both of St. Paul, Minn., of counsel), for respondent Northern Pac. Ry. Co.

J. A. Murphy, of Superior, for respondent Lake Superior Terminal & T. Ry. Co.

Thomas S. Wood, of Duluth, Minn., for respondent Duluth, South Shore & A. Ry. Co.

L. H. Bancroft, Atty. Gen., and Russell Jackson, Deputy Atty. Gen., for respondent Railroad Commission.

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

The strip of land occupied by the tracks of the railway companies, defendants, is about 1,300 or 1,400 feet wide, running north and south at the westerly side of the business portion of the appellant city, which strip crosses Belknap street, one of the principal thoroughfares of the appellant city. The Great Northern Railway Company, formerly the Eastern Railway Company of Minnesota, owns the westerly 600 feet of this strip, the Northern Pacific Railway Company owns 600 feet to the east of and adjoining the strip owned by the Great Northern Railway Company, the Duluth South Shore & Atlantic Railway Company and the Lake Superior Terminal & Transfer Railway Company own the balance of the strip at the easterly side. In December, 1894, the Great Northern Railway Company attempted to enter into an agreement with the appellant for the erection of viaducts on Belknap and other streets, running east and west across defendants' tracks and right of way, and the appellant by ordinance provided that the city, appellant, would build the approaches at the ends of such viaducts, the approach at the east being upon the strip of land occupied by the tracks of the Northern Pacific Railway Company, and under the terms of the alleged ordinance the appellant city was to have the use for the approaches of the lands in the streets upon which such approaches were built until the Northern Pacific Railway Company might want to use the same. The ordinance, among other things, provided as obligations upon the city that the city would not at certain points lay out or open any street or highway at grade, and that no grade crossings should be thereafter established across the grounds and right of way of said railway company, except at certain points; that, when the safety of the public or passengers or employés of the railway company or the interests of said railway should require it, the city would construct bridges at each of said points named with the abutments and approaches thereto, and that each of said bridges should have an elevation above the rails of the tracks of the railway at the grade existing when the bridges were constructed so as to give at least 22 feet clear between the top of the rails and the lowest member of the bridges from the rails; that should the city open or extend streets within certain limits across the grounds or right of way of the railway company, except at points named, the crossing of said grounds should be an under crossing or bridge, and the city agreed that it would at its own cost construct and maintain necessary approaches, abutments, retaining walls, and approaches with supports. It was further provided by said ordinance that the city would change the grade of streets, or establish grades, so as to make it legal for the railway company to construct bridges at an elevation as provided in the ordinance, and assume all liability for damages to all parties other than the railway company occasioned by or growing out of the change of grade, establishing of grades or construction of bridges with abutments and approaches, and save the company harmless; that, should the appellant city at some future time decide that it was necessary to construct signals or gates or to place watchmen at any points where streets have been or are laid out or opened across the grounds and right of way of said railway company south of Twenty-Eighth street, the city would at its own cost construct, maintain, and operate such signals or gates and pay for the services of watchmen, and save the railway company harmless; that the provisions of said ordinance shall constitute a contract between the city and said railway company.

After the passage of the ordinance for the construction of the Great Northern viaduct and on August 9, 1895, the city council of appellant passed an ordinance, which in terms recited the adoption of the ordinance for the construction of the Great Northern viaduct, and among other things authorized the Northern Pacific Railway Company, at its election after three years, to construct a bridge or viaduct across its tracks connecting with the viaduct over the tracks of the Great Northern Railway Company so as to extend the Great Northern viaduct over the tracks and property of the Northern Pacific Railway Company's right of way, under which ordinance the appellant was authorized without charge to build the approach to the Great Northern viaduct on the right of way of the Northern Pacific Railway Company in Belknap street. The ordinance further provided that the appellant agreed to remove such approach at its own expense when the Northern Pacific Railway Company should elect to build a viaduct over its own property, and such company was to give the appellant 60 days' notice of its election, and the appellant under this ordinance agreed that it would at its own expense construct the necessary abutments for the approach to the viaduct, and forever maintain and repair such viaduct, and assume all liability for damages to all parties other than the railway company occasioned by the construction of the viaduct and approaches, and to change the grade of the street so as to make it legal for said railway company to construct a bridge at...