Gosa v. Milwaukee Light, Heat & Traction Co.

• Decision Date: 28 January 1908
• Citation: 134 Wis. 369,114 N.W. 815
• Court: Wisconsin Supreme Court
• Parties: GOSA v. MILWAUKEE LIGHT, HEAT & TRACTION CO.

134 Wis. 369

114 N.W. 815

GOSA

v.MILWAUKEE LIGHT, HEAT & TRACTION CO.

Supreme Court of Wisconsin.

Jan. 28, 1908.

Appeal from Circuit Court, Waukesha County; James J. Dick, Judge.

Condemnation proceedings by the Milwaukee Light, Heat & Traction Company against Etta Gosa. From a judgment of the circuit court for Gosa, on appeal from the award of the commissioners, Gosa appeals. Reversed, and remanded for a new trial.

March 3, 1904, the respondent filed its petition in the circuit court for Waukesha county, seeking “to condemn and permanently appropriate all the rights of property which would entitle the owners and persons interested in the lots fronting and abutting upon said Lincoln avenue (or street) * * * to damages by reason of the construction, maintenance, and operation on said Lincoln avenue (or street) of the double-track railroad authorized by your petitioner's said articles of incorporation and said franchise, and as the same has been heretofore constructed and operated.” Elsewhere in said petition it appears that the whole street, 60 feet in width, is sought to be taken for the construction, maintenance, and operation thereon of petitioner's double-track electric railway “authorized by its articles of incorporation.” The usual order was made on this petition appointing commissioners. September 19, 1904, the commissioners filed their award to the appellant of $99.70 damages, and from this award both parties appealed to the circuit court, where the appellant had a verdict for $65. Costs were taxed in favor of the respondent and set off against these damages, and from the judgment thus arrived at this appeal to this court is taken by the lot owner.

The respondent was incorporated in the latter part of the year 1896 or in the early part of the year 1897, “for the business or purpose of purchasing or otherwise acquiring, constructing, equipping, leasing, maintaining, and operating by electricity or other power street railways for the transportation of passengers, mail, express, merchandise, and other freight in the city and county of Milwaukee and elsewhere in said state, and of purchasing or otherwise acquiring, taking, holding, and operating real and personal property rights, privileges, ordinances, and franchises, and any enterprise suitable for and in furtherance of the business or purposes of the corporation, and for the purpose of acquiring the real and personal property rights, privileges, ordinances, and franchises of any individual or individuals, or of any street railway companies and electric power, light or heat companies, foreign or domestic, now or hereafter existing,” etc. July 27, 1897, the common council of the city of Waukesha, under and pursuant to the power delegated to it by section 1862, St. 1898, granted by ordinance the use of certain streets of the city of Waukesha to the Waukesha Electric Railway Company, its successors and assigns, for the term of 50 years, and no longer. This ordinance was what is commonly known as a “street railway franchise,” and contained the usual provisions found in such franchise ordinances; and section 9 thereof was as follows: “The said company, its successors or assigns, shall not operate its lines and railway for any other purpose than that of a passenger railway within the streets of the city of Waukesha, but said company shall be permitted to carry such personal effects as are usually carried by passengers on street railways.” The ordinance was from time to time amended. The last amendment offered in evidence bears date July 11, 1900, and authorizes the laying of a double track for an electric street railway and the occupation of Lincoln avenue in the city of Waukesha. This franchise is referred to in the petition for condemnation, in the award of commissioners, and was offered in evidence by the respondent with a stipulation by counsel “that said franchises are now owned by the defendant company, and have never been declared forfeited, revoked, or annulled, and are now in force for what they are worth.”

Among other references cited upon the part of the appellant were the following: Murray Hill L. Co. v. M. L., H. & T. Co., 126 Wis. 14, 104 N. W. 1003; L. & M. R. Co. v. Seeger, 4 Wis. 268;Campbell v. Dick, 80 Wis. 42, 49 N. W. 120;Abbott v. M. L., H. & T. Co., 126 Wis. 634, 106 N. W. 523, 4 L. R. A. (N. S.) 202; 2 Lewis, Eminent Domain (2d Ed.) 1145; Washburn v. M. & L. W. R. Co., 59 Wis. 379, 18 N. W. 431.

Among other references cited upon the part of the respondent were the following: Richardson v. Babcock, 119 Wis. 141, 96 N. W. 554;Lowe v. Ring, 123 Wis. 370, 101 N. W. 698;Chapman v. Oshkosh & M. R. R. Co., 33 Wis. 629;Atty. Gen. v. W. W. Ry. Co., 36 Wis. 466;Wright et al. v. Mil. E. R. & L. Co., 95 Wis. 29, 69 N. W. 791, 36 L. R. A. 47, 60 Am. St. Rep. 74.Tullar & Lockney, for appellant.

Ryan, Merton & Newbury (Clarke M. Rosecrantz, of counsel), for respondent.

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

The principal errors assigned upon the appeal to this court, and the only errors necessary to be noticed, are in refusing to instruct the jury as requested by the appellant and in giving to the jury the instructions hereinafter referred to. It appeared in evidence that the respondent, a corporation organized as set forth in the statement of facts preceding this opinion, and claiming certain rights in the streets of Waukesha under the ordinance there referred to, had been since the year 1898 operating upon the double-track railway in question upon Lincoln avenue in the city of Waukesha electric railway cars. These cars were employed in interurban railway traffic between Milwaukee and Waukesha...