In re Milwaukee S. Ry. Co.

• Decision Date: 15 February 1905
• Citation: 102 N.W. 401,124 Wis. 490
• Parties: IN RE MILWAUKEE SOUTHERN RY. CO.
• Court: Wisconsin Supreme Court

124 Wis. 490

102 N.W. 401

IN RE MILWAUKEE SOUTHERN RY. CO.^a1

Supreme Court of Wisconsin.

Jan. 31, 1905.

Concurring Opinion, Feb. 15, 1905.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Application of the Milwaukee Southern Railway Company for the condemnation of certain lands. From an order appointing commissioners to appraise the compensation to be paid the landowners, said landowners appeal. Reversed.

This is an appeal from an order appointing commissioners in a proceeding to acquire real estate for railway purposes. The application states that the petitioner is a duly incorporated railroad corporation under the laws of this state; that it was organized to construct, maintain, and operate a railroad for public use from a point in the city of Milwaukee, Wis., thence in a southerly and southwesterly direction to a point on the boundary between the states of Wisconsin and Illinois, thence in a like direction as above stated to East St. Louis, in the state of Illinois; that it is intended in good faith to construct the railroad authorized by the charter and articles of incorporation; that of the lands designated it requires the parts described for a public use, stating the names of the owners and occupants of such lands, and praying an order prescribing the notice to be given, and the time and place of hearing; that the court determine whether petititioner is entitled to take the lands sought to be acquired for such public use; and prays that commissioners be appointed to ascertain and appraise the compensation to be made. The appellants, the city of Milwaukee, the International Harvester Company, Theron Higby, and Michael J. Canar, all appeared separately, and answered, denying all the material allegations of the petition, and alleging that part of the land of petitioner's proposed route sought to be condemned is one of the public parks of the city of Milwaukee, and that the petitioner had not obtained the consent of the city of Milwaukee to cross any of the city streets with the proposed railroad. It appears that petitioner had made application to the common council of the city of Milwaukee for such consent, but that the application had not received final action at the time these proceedings were instituted. Upon the hearing it appeared that the required notice of hearing had not been given to some of the owners of the lots covered by the application, and the proceedings were discontinued as to such pieces of land, without prejudice to the right of petitioner to institute other proceedings to condemn these pieces of land for the purpose of building this railroad. The court found: (1) That petitioner is a railroad corporation, duly incorporated and existing under the laws of the state. (2) That the real estate covered by the proceedings is necessary to construct and operate this railroad. (3) That petitioner intends in good faith to construct and operate the railroad authorized by petitioner's articles of incorporation and patent issued over and upon the lands covered by this proceeding. (4) That the strip of Mitchell Park adjoining the track of the Chicago, Milwaukee & St. Paul Railway Company is unimproved land, poorly adapted for park purposes, and is necessary to enable petitioner to construct its railroad as located, and that the taking of such strip for this purpose will not materially or substantially damage the park as a whole, or impair its usefulness. (5) That petitioner has surveyed its route over the lands in question for its main line, and has actually staked out the center line of the proposed railroad over this land; that the land specified to be taken for depot purposes, station buildings, grounds, and yards is required and necessary, and that petitioner intends in good faith to use them for such purposes; that the route of this railroad has been located by petitioner's board of directors upon the line staked out over the land covered by the proceedings, and that this real estate is required for the purposes of constructing and operating petitioner's proposed railroad. (6) That petitioner intends in good faith to institute independent condemnation proceedings to acquire the real estate originally intended to be included in the proceedings, but as to which the proceedings were dismissed without prejudice. (7) And that petitioner has complied with the requirements of the statutes, and has done all things necessary to entitle it to take the real estate covered by the proceedings and sought to be acquired for the purposes stated. Upon such findings the court made an order declaring petitioner a duly incorporated railroad under the laws of this state; that the real estate in question is necessarily required by it to construct, maintain, and operate the proposed railroad; and appointing commissioners to ascertain and appraise the compensation to be paid to the owners of the real estate so to be taken, fixing the time and place of their first meeting, and prescribing what notice should be given by them to the real estate owners. This is an appeal from such order.Timlin & Glicksman, Miller, Noyes & Miller, and Carl Runge, City Atty., for appellants.

J. C. Kerwin and John F. Burke (Henry C. Wood and Colin C. H. Fyffe, of counsel), for respondent.

SIEBECKER, J. (after stating the facts).

The statute providing for the acquisition of real estate by railroad corporations for the purposes of their organization prescribes (section 1846, St. 1898) what shall be stated in the petition for the appointment of commissioners of appraisal. Any person whose estate or interest is affected by the proceedings may show cause against granting the prayer of the petition. After a hearing of the petition the court or judge shall determine “whether the railroad corporation is entitled to take the whole or any part of the land sought to be acquired, and if no sufficient cause is shown against granting the prayer of the petition, shall make an order appointing” commissioners “to ascertain and appraise the compensation to be made to the owners or persons interested in the real estate determined necessary to be taken * * * for the purposes of the corporation.” It is urged that no determination should have been made in this proceeding holding that petitioner is entitled to take any of the lands sought to be acquired for railroad uses, upon the ground that it appeared that petitioner is not a duly incorporated railroad corporation under the laws of the state. Upon the hearing petitioner produced its patent, properly executed and issued by the state of Wisconsin, granting to the persons named therein full authority to exercise the powers and privileges of a railroad corporation in accordance with the articles of incorporation and the laws of the state. Under section 4181, St. 1898, any such patent of incorporation “shall be received as conclusive evidence of the existence of the corporation mentioned therein * * * in all cases where such facts are collaterally involved, and as presumptive evidence thereof and of the facts therein stated in all other cases.” It is suggested that the patent and its conclusive effect cannot incumber this inquiry in this proceeding, because the statute under which petitioner proceeds requires it to allege and prove its due incorporation. True, such are the statutory requirements. These requirements are, however, met by proper allegation of incorporation and the production of the patent in proof thereof. We can perceive no difference in the conclusive effect of the patent as evidence of such fact in this proceeding and such effect in a suit between this corporation and any other adverse party. The rule is well established in this state that the state alone can inquire into and object to the unauthorized exercise of corporate powers. Allen v. Clausen, 114 Wis. 244, 90 N. W. 181, and cases cited. The right of the state to confer corporate powers and privileges upon petitioner is unquestioned, and the inquiry whether they are regularly and properly conferred cannot arise in this proceeding, since the production of the patent establishes this fact, and precludes all further inquiry as to its corporate existence.

It is also claimed that the proof fails to show the required places from and to which such railroad is to be constructed or maintained and operated, in that but one place within this state is named; the other being within the state of Illinois. We cannot accede to appellants' construction of this statute that this requirement applies to the termini within this state. The language of the statute plainly directs that the places from and to which the road is to be constructed shall be given, but there is nothing in the provision indicating that it is limited to places within this state; nor is there any valid objection to a requirement that the termini of the road shall be given, even though the termini are without the state. This corporation may exercise all its rights and privileges in any other state, subject to the laws thereof, under section 1830, Rev. St. 1898, and under such powers may propose to construct a line of railroad reaching beyond the boundaries of this state. We think the termini of the road are properly designated, and sufficiently definite to meet the calls of the statute. The St. Louis, etc., Ry. Co. v. Hannibal Union Depot Co., 125 Mo. 82, 28 S. W. 483.

The requirement that the length of the proposed railroad be given manifestly refers to the length of the road between the termini, and is not limited to the portion of the road within the boundaries of this state. It is sufficient if the portion of the proposed road within the state be designated by naming each county in this state through or into which it is designed to be located and built.

It must appear that the petitioner “has surveyed its route over the land sought to be acquired for its main line, and has actually staked out the center line of the proposed road over the grounds...