Henry v. City of La Crosse
| Decision Date | 04 April 1917 |
| Docket Number | No. 55.,55. |
| Citation | 165 Wis. 625,162 N.W. 174 |
| Parties | HENRY v. CITY OF LA CROSSE ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, La Crosse County; E. C. Higbee, Judge.
Action by Nettie Henry against the City of La Crosse, wherein the Chicago, Milwaukee & St. Paul Railway Company and another were impleaded as defendants. Judgment for defendants, and plaintiff appeals. Affirmed.
This is an appeal to the circuit court from the determination of the board of public works and the common council of the city of La Crosse awarding damages to abutting owners on account of the construction of a viaduct over the tracks of the Chicago, Milwaukee & St. Paul Railway Company on Rose street in said city in accordance with an order of the Railroad Commission of Wisconsin.
After the case was appealed to the circuit court, the Chicago, Milwaukee & St. Paul Railway Company and the Wisconsin Railway, Light & Power Company, owners of the street railway, were impleaded as defendants. There were general objections to the jurisdiction of the court. The pleadings were changed and amended so as to charge one or all of the defendants in the matter with damages to abutting owners. The question of plaintiff's damages was submitted to the jury, and they found $350.
The court found as follows:
“(1) That the city of La Crosse is a municipal corporation, and that the Chicago, Milwaukee & St. Paul Railway Company and the Wisconsin Railway, Light & Power Company are railroad corporations organized and operating under the laws of the state of Wisconsin.
(2) That Rose street is a public street in the city of La Crosse, Wis., running north and south in the city of La Crosse, and that the Chicago, Milwaukee & St. Paul Railway Company maintains and operates a system of main and side tracks through this city, intersecting Rose street.
(3) That in the year of 1883, because of the danger incident to the crossing of defendant's tracks with Rose street at grade, the city of La Crosse entered into an agreement with the defendant Chicago, Milwaukee & St. Paul Railway Company, by which said company undertook to erect and maintain a viaduct over its tracks at Rose street, upon condition that the city construct and maintain the approaches thereto, and pursuant to such agreement a viaduct was in fact so constructed.
(4) That, preliminary to the construction of such viaduct, the city of La Crosse, by an ordinance duly adopted, established the grade upon Rose street from Gould street on the south to Hagar street on the north, in terms and figures as follows, to wit:
Center line of Gould street, 48 feet.
Center line of Island street, 64.10 feet.
Sixteen feet south of south line of right of way of Chicago, Milwaukee & St. Paul Railway, 69.19 feet.
Sixteen feet north of line of right of way of Chicago, Milwaukee & St. Paul Railway, 69.19 feet.
Center of Hagar street, 53.50 feet.
Center line of St. Andrew street, 66.25 feet.
(5) That, upon the construction of such viaduct in 1883, the approaches thereto were not in fact built upon the grade so established by the city of La Crosse, but upon a short, sharp grade, leading to the floor of such viaduct.
(6) That, in 1912, such original viaduct became dangerous and unsafe for public travel, and by order of the Railroad Commission of Wisconsin it was condemned and Rose street closed to travel, but thereafter in November, 1913, the Railroad Commission ordered the construction of a new viaduct, in accordance with plans and specifications approved by the Railroad Commission, which apportioned the expense of construction between the parties defendant as follows: Sixty per cent. to be paid by the Chicago, Milwaukee & St. Paul Railway Company; 25 per cent. to be paid by the city of La Crosse; 15 per cent. to be paid by the Wisconsin Railway, Light & Power Company.
(7) That such new viaduct and its approaches were thereupon constructed by the defendant Chicago, Milwaukee & St. Paul Railway Company, in accordance with said plans and specifications, and the approaches thereto, pursuant to said plans, were built upon the grades established for Rose street by the city of La Crosse in 1882, as hereinabove found, except that such approaches do not occupy the entire width of the street, but leave a roadway nine feet wide, level with the abutting property, on each side of said approaches between it and the curbs of Rose street.
(8) That by direction of the Railroad Commission of Wisconsin in its order of November, 1913, the city of La Crosse instituted proceedings to assess the damages claimed to result to abutting property by reason of the building of such viaduct, and, although said city disclaimed any liability, it conducted proceedings to determine such damages as for a change of the grade of Rose street, at the expense of abutting property, as a result of which amounts were conditionally allowed to the property owners by the city of La Crosse, and from the particular conditional award to the plaintiff herein said plaintiff Nettie Henry has appealed to this court.
(9) That Rose street has never been improved at the expense of abutting property.
(10) That at no time prior to the construction of the new viaduct in 1913 has Rose street been graded to the established grade.”
The court concluded:
“(1) That by the construction of the new viaduct the grade at Rose street has not been changed.
(2) That the defendants are entitled to judgment in their favor upon the merits of this action, notwithstanding the verdict of the jury.”
Judgment was entered accordingly, from which this appeal was taken.Frank Winter, of La Crosse, for appellant.
Jesse E. Higbee, of La Crosse, for respondent City of La Crosse.
Paul W. Mahoney, of La Crosse, and C. H. Van Alstine and H. J. Killilea, both of Milwaukee, for respondent Chicago, M. & St. P. Ry. Co.
George H. Gordon, Law & Gordon, of La Crosse, for respondent Wisconsin Ry., Light & Power Co.
KERWIN, J. (after stating the facts as above).
It appears without dispute that the railroad of the defendant Chicago, Milwaukee & St. Paul Railway Company was constructed at grade across Rose street in the city of La Crosse in 1856; Mill street is parallel and adjacent to Rose street; each of these streets is and was for a long time prior to 1882 covered by a network of railroad tracks; in 1883, a viaduct was built by authority of law at the Rose street crossing of ...
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