Muscoda Bridge Co. v. Worden-Allen Co.

• Decision Date: 08 May 1928
• Citation: 196 Wis. 76,219 N.W. 428
• Parties: MUSCODA BRIDGE CO. v. WORDEN-ALLEN CO. ET AL.
• Court: Wisconsin Supreme Court

196 Wis. 76

219 N.W. 428

MUSCODA BRIDGE CO.

v.WORDEN-ALLEN CO. ET AL.

Supreme Court of Wisconsin.

May 8, 1928.

Appeal from a judgment of the Circuit Court for Grant County; R. S. Cowie, Circuit Judge.

Equitable action by the Muscoda Bridge Company against the Worden-Allen Company and others, in which the State and others sought to be made parties defendant. From a judgment granting plaintiff an injunction, defendants appeal, and, from orders denying intervention, the State and others appeal. Affirmed in part and reversed in part, with directions.--[By Editorial Staff.]

Action commenced November 4, 1927. Judgment entered December 12, 1927.

Action in equity to enjoin defendants from trespassing upon plaintiff's property, being real estate situated on the banks and in the bed of the Wisconsin river in the village of Muscoda, Grant county, and the town of Eagle, Richland county.

The plaintiff was the owner of a toll bridge and its abutments across the river at that point, over which traffic on state highway No. 80 crossed the river. The public authorities proposed to put up a free bridge across the river, and for that purpose attempted a relocation of the highway across the river, up stream from the toll bridge about 150 feet. The plaintiff owned real estate on both sides of the river. The contract to build such bridge was let to the defendant Worden-Allen Company, a corporation, and by it sublet to the defendant Joseph McCarty Construction Company, a partnership. The latter company began active work of construction of the bridge, and in so doing occupied a portion of plaintiff's property, and threatened to continue the construction so as to occupy such as was necessary to the building of such bridge.

The complaint substantially alleges the foregoing facts, and further alleges that, upon said tracts of land in said counties of Grant and Richland, the plaintiff, under due authority of law, has erected, at great expense, and now owns, maintains and operates, a public toll bridge, and receives and collects, pursuant to law, tolls from the public for passage thereover; that the tolls so received are the plaintiff's only source of revenue, and the taking of said property, or any part thereof, for the erection of public free bridge, will greatly injure this plaintiff, and wholly deprive it of the income and greatly reduce the value of the remaining portion of said property, should all not be taken. It is further alleged that the property is of great value, and that “the defendants, conspiring with others, to maliciously injure this plaintiff, and to deprive it of its property without due process of law, give out and declare that they are about to enter upon the said property of the plaintiff and erect thereon a public bridge, and have commenced such building operations; that the defendants have made preparations to enter upon said property against the consent of the plaintiff, and without right to do so, and have, in fact, entered and commenced to build structures in and on the bed of the stream, and, as the plaintiff verily believes, unless restrained by this court, will continue to forcibly enter upon said premises, for the purpose of erecting a bridge thereon, and building piers and other structures in the water, to plaintiff's great damage.”

The circuit court, upon such complaint, granted a temporary injunction. The defendants answered, in substance, that they were proceeding in the erection of said bridge under a contract with the state of Wisconsin, which contract was a matter of public record, of which the plaintiff had actual knowledge; that, under and by virtue of the terms of said contract, the state of Wisconsin agreed that legal steps should be promptly taken for the acquisition, by condemnation proceedings, of the lands necessary to the fulfillment of the contract, and alleged further that any delay in the institution of such condemnation proceedings resulted, as the defendants were informed and verily believed, from the action of the plaintiff in seeking such delay, and at least with its knowledge and consent. It further alleged that the injunctional order was issued on the 18th day of October, 1927, but was not served until the 4th day of November, 1927, and in the meantime the contractors, at very great expense, moved all of their machinery, implements, tools, and materials to build said bridge to the proposed location, and had gone to large expense in connection therewith.

The state of Wisconsin, by petition containing appropriate allegations, acting through its Attorney General, asked leave of the court to be made a party defendant in said action. This the court denied by order, and the state appeals from such order.

Also the county of Richland, acting through its attorneys, made a similar application to be admitted as a party defendant, which application was by order denied. It also appeals from such order. Similarly, the village of Muscoda and the town of Eagle asked to be made defendants in said proceedings, which the court denied by order, and the petitioners appeal.

The case was tried before the court without a jury. The court thereafter made findings of fact, in substance as follows: That the plaintiff is a Wisconsin corporation operating a toll bridge across the Wisconsin river; that the Worden-Allen Company is a corporation doing business in Wisconsin; that the Joseph McCarty Construction Company is a partnership; that the plaintiff is the owner of said described real estate in Grant county, and other certain described real estate in Richland county, and that located thereon there is a valuable toll bridge erected by the plaintiff's predecessors in title more than 60 years ago, extending from block 3 in the village of Muscoda, Grant county, in a northerly direction across the Wisconsin river, to the lands owned by the plaintiff in Richland county, and that the plaintiff and its predecessors in title had operated said toll bridge during that time; that such toll bridge is private property, and is a public highway only in the sense that the public has a right to use it indiscriminately by paying proper toll; and that it does not constitute a public highway in the sense that it belongs to, or is controlled by, the public, in any manner, or that the public has any interest therein; that no public highway has ever been laid across the Wisconsin river by any public authority at the point in question, and that no public highway exists there; that state trunk highway 80 has never been laid through the plaintiff's property or across the Wisconsin river, and that there has never been a state trunk highway connecting state trunk highway No. 80 in Richland county, where it ends at plaintiff's property in said county, with state trunk No. 80 in Grant county, where it ends at plaintiff's property in said county; that the state highway commission never took any action seeking to make such toll bridge with its approaches a part of state trunk No. 80, and that said state trunk 80 was not lawfully relocated across the Wisconsin river and through plaintiff's property at either end of its toll bridge; that there has never been any lawful condemnation proceedings commenced for the purpose of laying a highway across or through the plaintiff's premises; that the attempted condemnation proceedings instituted by Grant county and Richland county are void; that the defendants, during the month of September, 1927, and at divers and various times, claiming to act under an alleged contract by the Worden-Allen Company with the state of Wisconsin, trespassed upon the plaintiff's property, and attempted to build permanent structures thereon on the bed of the river belonging to the plaintiff, and did build part of one pier thereon; that the plaintiff immediately and vigorously objected thereto, and protested against the defendants' so doing, but that the defendants willfully and forcibly persisted in so doing; that the plaintiff had never given any consent to the defendants, or either of them, to enter upon said premises and build such structures, and that no condemnation proceedings had been instituted by any public authority seeking to secure such right; that the defendants had no right under their contract with the state or otherwise to enter upon plaintiff's property, and were trespassers in attempting to build piers thereon; that the plaintiff did sustain substantial damage by the action of the defendants, and that such taking of the plaintiff's property will cause irreparable damage to the plaintiff; that there has been no finding of necessity for the taking of the plaintiff's premises or any part thereof by any jury or by any body or commission authorized to act in the premises; that no damage had been paid, and no ascertainment of damages suffered had been made for the taking of such property; that no municipal unit of government and no person authorized to institute condemnation proceedings is or ever has been in possession of plaintiff's property and using it for a purpose for which condemnation proceedings might be instituted within the provisions of section 32.15, Stats.; and that the plaintiff has no adequate remedy at law.

The court thereupon entered a judgment perpetually enjoining and restraining the defendants or any person from constructing or erecting any structure in the waters of the Wisconsin river on the property therein described.

The defendants filed due exceptions to various findings of fact, which it is unnecessary to set out here. The defendants appeal from the judgment so entered.

Bottum, Hudnall, Lecher, McNamara & Michael (Daniel H. Grady, of Portage, Suel O. Arnold, Asst. Atty. Gen., and George B. Hudnall, of Milwaukee, of counsel), for appellants Worden-Allen Co. and Joseph McCarty Construction Co.

John W. Reynolds, Atty. Gen., Suel O. Arnold, Asst. Atty. Gen., and Adeline J. Meyer, Legal Investigator, for the State and Richland County.

Van R. Coopernoll, Dist. Atty., of...