Metropolitan Sewerage Dist. of Milwaukee County v. Chicago, M., St. P. & P. R. Co.
| Decision Date | 30 June 1975 |
| Docket Number | Nos. 495,517,s. 495 |
| Citation | 69 Wis.2d 387,230 N.W.2d 651 |
| Parties | METROPOLITAN SEWERAGE DISTRICT OF the COUNTY OF MILWAUKEE, Appellant, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RR CO., Respondent. METROPOLITAN SEWERAGE DIST. OF the COUNTY OF MILWAUKEE, Respondent, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RR CO., Appellant. |
| Court | Wisconsin Supreme Court |
These cases were tried separately; separate judgments were entered and separate appeals taken. However, the parties are the same in both cases and the basic issues to be determined upon the appeals are so closely related that we have concluded to decide them in one opinion.
The all-encompassing issue is whether the sewerage district or the railroad company is liable for the cost of new bridges or culverts in and over streams made necessary by improvements in the sewer system.
Supreme Court Case No. 495 will be referred to as Kinnickinnic River (KK River) case or project, and Supreme Court Case No. 517 will be referred to as the Lincoln Creek case or project.
The trial court entered judgments determining the Metropolitan Sewerage District financially liable in the KK River case and the Chicago, Milwaukee, St. Paul & Pacific Railroad liable in the Lincoln Creek case. The sewerage district and the railroad respectively appeal.
Schroeder, Gedlen, Riester & Moerke by Ewald L. Moerke, Jr., and Robert Arthur Melin, Milwaukee, for Metro. Sewer. Dist. of Milwaukee Cty.
Godfrey & Trump, Milwaukee (Richard R. Robinson, Milwaukee, of counsel), for Chicago, M., St. P. & P.R. Co.
One of the significant factual differences in the two cases is that the new bridge was relocated and built about 100 feet from the old one in the KK River project, and the new bridge in the Lincoln Creek project was rebuilt at the same location as the old bridge.
In 1895 the railroad constructed a bridge across the southeastern branch of the KK River in the city of Milwaukee to carry the railroad's main line of tracks between Chicago and Milwaukee. In subsequent years the bridge was modified to add increased strength and support more tracks. Railroad records reveal that in 1942 there was an opening of 218 square feet under the bridge, and that when the water was as its highest level it was two feet below the inside top of the bridge.
On June 1, 1956, the railroad was notified by the Sewerage Commission of the city of Milwaukee (city commission) that it had developed a master plan layout for the improvement of the KK River insofar as drainage was concerned, which involved the straightening of its course and the removal of several bends. The railroad was further advised that as a consequence of such straightening, the point at which the river and the tracks intersect would have to be relocated about 100 feet south of the original bridge. The railroad refused to pay for the cost of the new bridge or culvert, but in recognition of the fact that litigation of the question of who should pay for the new bridge would take considerable time, the railroad and the sewerage commission, acting for the benefit of the Metropolitan Sewerage District, on September 29, 1959, entered into a written agreement whereby the railroad agreed to grant an easement through its right of way to the district and to construct a temporary bridge under which the new one could be constructed. The city commission agreed to construct or have constructed the permanent new bridge and to advance funds for the entire project, including the work done by the railroad, out of district funds. The agreement further provided that the payment of such funds would in no way prejudice the rights of the district or the city commission to commence an action to determine the respective rights or obligations of the parties to pay for the work contemplated by the agreement. The agreement was specifically made in recognition of the fact that any delay in the completion of the work due to litigation would not be in the public interest.
The contract for the new bridge was awarded on May 19, 1960, and the project was completed on December 19, 1960.
The design of the structure was selected by the city commission from three alternative plans submitted by the railroad based on specifications furnished by the city commission. The new bridge or culvert has a potential 280 square foot opening, but at the time of trial the river bed under the structure had not been fully excavated so that there was only about 140 square feet actually open.
The master plan for the river, which included straightening, deepening and widening, was designed and executed in the public interest to alleviate a severe flooding problem created by increasing urbanization and resulting imperviousness and surface water run-off. Such flooding, in addition to affecting road and airport conditions, was surcharging the sanitary sewers causing them to back up, sometimes into basements, creating a health hazard.
The district commenced this action on June 3, 1969, by service of a summons and complaint in which it alleged, inter alia, the expenditure of.$226,100.88 on the project. In its answer, the railroad admitted the amount of such expenditure but denied liability for such amount.
Subsequent to a trial to the court, the circuit court held that the railroad was under no statutory or common-law duty to pay for the construction of the new structure and dismissed the complaint. Such holding was based on findings that: (1) The relocation of the bridge, although prompted by reasons of public necessity, was of no benefit to the railroad; (2) the old bridge remained entirely serviceable and had a larger effective opening than the new bridge; and (3) the railroad did nothing to change the course of the channel.
In 1863 the railroad constructed a triple arch culvert or bridge to carry one of its main line tracks across Lincoln Creek. The structure measured 12 feet from the bottom of the channel and was constructed of stone piers, abutments and head rolls, with brick arch rings. The bridge was 15 feet wide and 38 feet long (across the creek). Its waterway opening measured 470 square feet.
In 1934, in connection with other creek improvements, the flow line of the creek under the bridge was lowered four to five feet and the bridge's piers were encased in concrete, all at public expense and not for any railroad purpose. As a result of such alterations the waterway opening under the bridge became 523 square feet.
In 1937, to increase the structural strength of the bridge, the railroad installed large timber struts in the center arch of the bridge. By 1964 the railroad had installed such struts or cribbing at the top and sides of all three arches. Because of the space occupied by such timber cribbing, in 1964 the waterway opening under the bridge had been reduced to 292 square feet.
In 1961 the railroad was advised by the city commission that it had developed an improvement plan for Lincoln Creek which would necessitate deepening the channel five and one-half feet under the bridge and would require a waterway opening under the bridge of 600 square feet. The improvement plan also involved the widening, deepening, straightening and paving of the channel in several areas along its course. Such improvements were necessary due to heavy flooding which was occurring in the area as a consequence of the growing imperviousness, due to urban development, of the land in the Lincoln Creek watershed. Such flooding, in addition to submerging streets and basements, was overloading, or surcharging, the sanitary sewers, causing them to back up and deposit sewage in residential basements, thereby creating a health hazard.
Because the railroad refused the city commission's request that it reconstruct its bridge to conform with the necessary specifications, the parties entered into an agreement on September 29, 1965, similar to the one involved in the KK River case. In essence, the railroad agreed to demolition and reconstruction of the bridge and the city commission agreed to pay the costs. The agreement further provided, however, that it was:
'. . . mutually agreed and understood, however, that the payment of these funds by the Commission or the District shall not in any way, shape or manner prejudice the rights of the District or the Commission from instituting such action or actions as may be necessary to determine the rights or obligations of the parties to this contract to pay for any part or all of the work set forth in the contract to be done by either or both of the parties, nor shall it prejudice the rights of the railroad to defend such action; the understanding between the parties being that the public interest requires the completion of this work, and that any delay due to litigation to determine the respective rights of the parties would not be in the public interest.'
The new, open span bridge was installed on August 7, 1966, on the same site as the original.
This action was commenced by service of summons and complaint on July 25, 1969, by the district acting by and through the city commission. The complaint alleges a statutory and common-law duty on the part of the railroad to pay for the new bridge and demands recovery in the amount of $194,323.09. The railroad, in its answer, admits that amount to be the cost of reconstruction.
At the trial, the division engineer for sewer design of the city commission testified that the effect of the timber cribbing was two-fold: (1) It reduced the waterway area under the bridge, and (2) it snagged floating brush and debris during high water periods, thereby creating a damming effect. He also testified that without the cribbing the waterway opening would have been sufficiently large and that, depending upon the structural stability of the bridge, it may have been possible to remove the timber. He further testified that the city commission had tried to devise a suitable plan to alleviate the flooding that would not require...
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