La Crosse City Ry. Co. v. Higbee

• Decision Date: 25 September 1900
• Citation: 83 N.W. 701,107 Wis. 389
• Parties: LA CROSSE CITY RY. CO. v. HIGBEE.
• Court: Wisconsin Supreme Court

107 Wis. 389

83 N.W. 701

LA CROSSE CITY RY. CO.

v.HIGBEE.

Supreme Court of Wisconsin.

Sept. 25, 1900.

Syllabus by the Judge.

1. The rule as regards whether a street railroad is an additional burden on the fee title to the street on which it is located, established in Hobart v. Railroad Co., 27 Wis. 194, applies to street railroads operated by electric power communicated by means of a trolley wire supported over the track by cross wires attached to poles set in the streets near the outer edge of the sidewalk lines, so far as the construction and operation of such roads fall within the principle of such case.

2. The doctrine of Krueger v. Telephone Co. (Wis.) 81 N. W. 1041, namely, that any new use of a street which to any extent requires a permanent occupancy thereof is an additional burden on the fee, applicable to telephone lines, does not apply to electric street railroads, because such railroads are but an improved method of using the street to effect its original design. The two doctrines divide on whether the use of the street is new, having regard to the original purpose thereof, or the use is only a new mode of devoting the street to public travel, its original purpose.

3. The principle of Hobart v. Railroad Co. may be stated as follows: A railroad, constructed on the grade of a street and operated so as not to materially interfere with the common use thereof for public travel by ordinary modes, or with private rights of abutting landowners, and for the purpose of transporting persons from place to place on such street at their reasonable convenience, is not an additional burden on the fee thereof.

4. A railroad satisfies the above essentials, regardless of the motive power used or how it is applied, if it be strictly a street railroad for the carriage of passengers on the street, taking them on and discharging them at reasonable points, and it be so constructed and operated as not to materially interfere with the ordinary modes of using the street for public travel or with private rights.

5. A supporting trolley-wire pole, set in a street in front of the sidewalk, does not violate the above rule if it be placed with reasonable regard for the convenience of the owner of the fee of the land on which it is located, and so as not to materially interfere with access to his lot outside the street line.

Appeal from circuit court, La Crosse county; Robert G. Siebecker, Judge.

Action by the La Crosse City Railway Company against E. C. Higbee.

Action to enjoin the defendant from cutting down an electric street railroad pole, which was erected in the usual way at the outer edge of the sidewalk on his property, on one of the streets of the city of La Crosse, Wis. Sufficient facts are properly stated in the complaint to constitute a good cause of action against the defendant, if electric street railroad poles may be legally placed in a city street, when so located as not to materially interfere with public travel, or access to and egress from abutting property, without the consent of the owner of such property, or his being compensated for a taking of his property for the public use. The defendant interposed a general demurrer to the complaint, which was sustained, and plaintiff appealed. Reversed.

Losey, Woodward & Lees, for appellant.

Higbee & Bunge, for respondent.

MARSHALL, J.

The decision appealed from, as we are informed, was made on the theory that the case is controlled by the conclusion reached in Krueger v. Telephone Co. (Wis.) 81 N. W. 1041, regarding the right to maintain telephone poles in public highways without the consent of abutting property owners, and the reasoning that led to such conclusion. Counsel for respondent urge the same view in this court, so we are confronted at the outset with the question of whether the point now presented has been in effect decided and the law in regard to it established for this state against appellant's contention to the effect that an electric railway pole in a city street, properly placed, is not an additional burden upon the fee title to the land over which the street is laid.

We shall not discuss at any great length what was said in the Krueger Case, for the purpose of explaining and rendering the reasoning of the opinion there more clear and consistent with the conclusions reached here than they seem to have been to counsel for respondent and to the learned court that decided this case below. If there exist any necessity for making the opinion in the Krueger Case more definite and certain, it is not perceived here. What was said there should be read and considered with reference to the points decided, upon which the final decision was grounded. Such points are, first, the law governing the right of telegraph and similar companies to erect and maintain poles and lines on public streets and highways, does not extend beyond the public right to the street, hence is subject to the private rights of the owners of the fee of the land covered by the streets, who must be dealt with independent of such law, if such poles constitute an additional burden upon such fee; second, as regards the contingency suggested, as between the rule in jurisdictions holding that any quasi public use of a street is permissible that is not so inconsistent with the original design thereof as to materially interfere therewith, under which telephone and telegraph lines in public streets have been held not to be an additional burden upon the fee, and the rule adopted by the great majority of courts and supported generally by law writers,--that a new mode of using a public highway so wholly different from the original mode of use as to really constitute a new use affects private rights, though such use may in some degree affect the original design of the way, if it requires to some extent a permanent occupancy of the street, regardless of whether such occupancy materially interferes with the primary use of the street,--under which rule the maintenance of telegraph and telephone poles on public streets has been held to be an additional burden on the fee, for which the abutting owner must be compensated, the court inclines to and adopts the majority rule above, so far as relates to telephone lines. That course was followed, as was remarked, in view of the fact that the latter rule has the greater support, as indicated, and the further fact that a middle ground for street railways was adopted for this state in Hobart v. Railroad Co., 27 Wis. 194. All said in the opinion as to permanent occupancy of a street by a quasi public corporation, for a purpose not originally contemplated in the acquirement of the land covered by it for public use, being of itself a new burden upon the fee thereof, was said arguendo, and as mere backing for the extreme rule in favor of abutting property owners, adopted as to telephone lines, but which, as indicated in the opinion, has been, since the Hobart Case, contrary to the policy of the state regarding street railways, as the opinion clearly shows.

So, as we have seen, there is nothing in the Krueger Case, when rightly understood, and when, we may properly say, understood as the language of the opinion clearly indicates, to affect the question raised in this case. That is all we deem necessary to say regarding the Krueger Case. It established the law for this state, governing the question presented for decision and decided, and the opinion should not be read as in any way limiting the law regarding street railways, laid down in the early case in this court.

From what has been said this case is left to turn on whether a street-railroad pole, properly placed, is an additional burden on the fee of the land upon which it is located, within the principle of Hobart v. Railroad Co. Such principle, briefly stated, is that a railroad, constructed and operated in the street of a city at grade, so as not to materially interfere with its common use for public travel by ordinary modes, or with private rights of abutting landowners, for the purpose of transporting persons from place to place on such street at their reasonable convenience, is not an additional burden upon the fee thereof.

In Chicago & N. W. Ry. Co. v. Milwaukee, R. & K. Electric Ry. Co., 95 Wis. 561, 70 N. W. 678, 37 L. R. A. 856, the court pointed out the significance of the purpose of a street railway as indicated in the rule under consideration, namely, the carriage of passengers; also the significance of the place where such purpose may be exercised, namely, in city streets; and it was held that a railway having for its purpose the carriage of freight, a commercial railway, is not covered by the Hobart Case.

In Zehren v. Light Co., 99 Wis. 83, 74 N. W. 538, 41 L. R. A. 575, the significance of that part of the rule of the Hobart Case relative to where a street railway may be constructed was again pointed out and discussed, and it was held that it does not extend to a purely country highway. So it will be seen that the law governing the subject under discussion, as laid down when first considered in this court, has not since been extended or limited. No reason is perceived and none contended for, as we understand it, why such law should now be extended. The issue raised must be tested accordingly.

It is claimed by appellant that no significance should be given to the fact that in the Hobart Case the motive power was obtained by the use of horses, while the contrary is urged by counsel for the respondent, attention being called to the following language of the chief justice in Chicago & N. W. Ry. Co. v. Milwaukee, R. & K. Electric Ry. Co., supra: “There is certainly far more difference in the use of mere horse power, as in Hobart v. Railroad Co., supra, and electric power, as in the case of the defendant, than there is in the case of electricity and steam.” When that language is read with reference to the point under consideration, it will be seen that it was not intended to convey the idea...