Milwaukee W. Fuel Co. v. City of Milwaukee

• Decision Date: 07 January 1913
• Citation: 152 Wis. 247,139 N.W. 540
• Parties: MILWAUKEE WESTERN FUEL CO. v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

152 Wis. 247

139 N.W. 540

MILWAUKEE WESTERN FUEL CO.

v.CITY OF MILWAUKEE.^d1

Supreme Court of Wisconsin.

Jan. 7, 1913.

Dissenting Opinion, Jan. 7, 1913.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by the Milwaukee Western Fuel Company against the City of Milwaukee. From a judgment for plaintiff, the City appeals. Reversed and remanded, with directions to dismiss the complaint.

Kerwin and Timlin, JJ., dissenting.

Action at law under section 3180, Stats., to recover damages caused by the construction by the city of Milwaukee in 1908 of a new bascule bridge across the Kinnickinnic river in said city, which bridge, it is alleged, constitutes a nuisance in navigable waters and to abate the same. The Chicago & Northwestern Railway Company and the Chicago, Milwaukee & St. Paul Railway Company were joined as parties defendant under the claim that they jointly with the city placed and maintained certain piling in the river for the purpose, in part at least, of protecting the approaches of the bridges of the railway companies. The Kinnickinnic river is navigable, and runs nearly east and west in the city of Milwaukee. Kinnickinnic avenue is a public street running north and south in said city and crosses the river. In 1908, pursuant to authority previously granted therefor by the federal government and with its approval, the city built a new bascule bridge in place of an old swing bridge across Kinnickinnic river. The plaintiff owns and operates a wood and coal yard on the south bank of the river situated partly east and partly west of Kinnickinnic avenue. When the old bridge spanned the river, the plaintiff found ready access through the south draw of the bridge and channel of the river to its woodyard dock lying immediately west of the bridge. When the city built the new bascule bridge, the south abutment thereof completely closed the south channel of the river, and prevented plaintiff from gaining access to that portion of its dock lying immediately west of the abutment through said south channel from the east, and the new pier of the Chicago & Northwestern Railway Company prevented plaintiff from gaining access to its dock, lying west of Kinnickinnic avenue, through the old south channel from the west. The railway companies placed and maintained a row of piling along the south border of the new channel beginning near the north end of the south abutment of the bascule bridge, running in a westerly direction between the city bridge and the bridge of the Chicago, Milwaukee & St. Paul Railway Company and between the latter bridge and the bridge of the Chicago & Northwestern Railway Company, and for some distance west beyond said latter bridge. By means of these structures the plaintiff was deprived of access by water to its dock lying west of Kinnickinnic avenue. The following diagram, in which the dotted lines show the old channels and the heavy black lines the new channel, will fully explain the situation.

IMAGE

The defendant city of Milwaukee in its answer claimed that the new bascule bridge, together with its approaches, abutments, fenders, and all its appurtenances, was placed and located within the easterly and westerly boundaries of Kinnickinnic avenue, where it crosses the river; that prior to its erection the plan thereof was approved by the Secretary of War of the United States, as required by the federal statutes; and that said bridge was constructed pursuant to such plan by the city as an improvement for the benefit of the public and to facilitate travel upon its streets, and especially Kinnickinnic avenue.

The jury found that the city had nothing to do with the placing or maintenance of the piling mentioned. They found, further, that the defendant the city of Milwaukee by the manner in which it built the new bridge impaired plaintiff's access to its dock lying west of Kinnickinnic avenue, and assessed plaintiff's damages resulting therefrom in the sum of $500 for the period between September 1, 1908, and December 1, 1909. The court ordered judgment in favor of plaintiff for the amount of damages stated, and adjudged that the new bridge built by the city was a nuisance, and adjudged, further, “that its abatement at the present time is unnecessary; but that the refusal to abate the same at the present time shall be without prejudice to the right of the plaintiff to bring such action or actions as it may be advised, for its damages by reason of the continuance of said nuisance, and also to abate the same if the city of Milwaukee shall fail or neglect to abate the same, or shall fail or neglect to acquire, either by purchase or condemnation, the rights of the plaintiff infringed by the continuance of said nuisance.”

From such judgment the defendant city appealed.

Daniel W. Hoan, City Atty., and Clifton Williams, Special Asst. City Atty., both of Milwaukee, for appellant.

Van Dyke, Rosecrantz, Shaw & Van Dyke, of Milwaukee, for respondent.

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

[1] As we understand it, the turning point in the case in the court below was the fact that the plans of the bridge were not approved by the common council, as required by section 9 of chapter 9 of the city charter, and that the structure was held to be a nuisance on that ground. There is a dispute between the parties as to whether or not the evidence shows they were so approved. A careful examination of the evidence adduced by both sides satisfies us that the plaintiff made a prima facie case showing that the plans were not approved, which was not overthrown by defendant's proof, and the case must be disposed of on the theory that there was a failure of approval of the plans by the council. It is claimed by the respondent that such failure of approval renders the bridge an illegal structure and a nuisance in navigable waters under the following authorities: Barnes v. City of Racine, 4 Wis. 454;Potter v. President & Trustees of the Village of Menasha, 30 Wis. 492;Sweeney v. C., M. & St. P. Ry. Co., 60 Wis. 66, 18 N. W. 756;Pennsylvania Ry. Co. v. Baltimore & N. Y. Ry. Co. (C. C.) 37 Fed. 129;Maxwell v. Bay City Bridge Co., 41 Mich. 453, 2 N. W. 639;Texarkana & Ft. S. Ry. Co. v. Parsons, 74 Fed. 408, 20 C. C. A. 481;Viebahn v. Crow Wing County Commissioners, 96 Minn. 276, 104 N. W. 1089, 3 L. R. A. (N. S.) 1126. A careful examination of these cases will disclose the fact that they do not decide the question here presented. In Barnes v. Racine, 4 Wis. 454, the city, under its general authority as a municipal corporation, proceeded to erect a bridge over Root river at a sharp angle in the stream. It had no statutory authority or federal authority to erect the bridge, and the court held that, as and where erected, it constituted an obstruction to navigation, and therefore by statute was made a nuisance. In Potter v. President and Trustees of the Village of Menasha, 30 Wis. 492, it was held that the defendants, as trustees of the village of Menasha, had no authority whatsoever in any form to construct the bridge in question; that they were pure trespassers. The case of Sweeney v. C., M. & St. P. Ry. Co., 60 Wis. 60, 18 N. W. 756, turned upon a question of pleading, and it was there held that a complaint which alleged that the channel of the Wisconsin river was obstructed by a bridge built by the defendant below the city of Portage, in that no boats or rafts could pass in safety without guide booms extending up the river from each end of the main span, and that such guide booms were not maintained, in consequence of which plaintiff suffered damage, constituted a cause of action, although it did not allege that the channel span of such bridge had been designated by the engineer of the United States in accordance with section 1605, R. S., or that there had been any violation of section 1837, R. S. In Pennsylvania Ry. Co. v. Baltimore & N. Y. Ry. Co. (C. C.) 37 Fed. 129, it was held that a complaint alleging that a bridge over navigable waters constituted an obstruction therein need not allege that the bridge was not built in conformity with authority granted by the federal government, for, if it was built in conformity therewith, that could be shown as defensive matter, adding: “If the contention for the demurrer is sound, it would devolve upon a plaintiff, whose right to the free navigation of public waters has been interrupted by an impediment which prima facie is a nuisance, to prove that the defendant acted under an assumed authority, but was not justified, because his acts were outside of the limitations of his authority; in other words, to negative facts by way of defense which are peculiarly within the knowledge of the defendant.” The demurrer to the complaint was therefore overruled. In Texarkana & Ft. S. Ry. Co. v. Parsons, 74 Fed. 408, 20 C. C. A. 481, it appeared that Congress had authorized a railway company to construct a bridge with a draw of 130 feet in the clear, providing the plans were approved by the Secretary of War, and providing, further, that the bridge should not be built until such plans were so approved. It was conceded that the openings of the draw were only 125 feet in the clear, and no evidence was offered to show that the plans had ever been submitted to or approved by the Secretary of War. The case of Maxwell v. Bay City Bridge Co., 41 Mich. 453, 2 N. W. 639, so far as applicable to any question in the case at bar, decided that a petition for leave to build a bridge across the Saginaw river in Bay City did not comply with the statutory requirements as to describing the location and character of the bridge. Therefore the supervisors acquired no jurisdiction to permit its construction. It was held the specified location was indefinite, because the petition proposed that it should be located somewhere between Second and Ninth streets in Bay City, and it was shown that there were seven streets between the two named where it might be placed. The description...