Pabst Brewing Co. v. City of Milwaukee

• Decision Date: 01 May 1914
• Docket Number: No. 65.,65.
• Citation: 157 Wis. 158,147 N.W. 46
• Parties: PABST BREWING CO. v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

157 Wis. 158

147 N.W. 46

PABST BREWING CO.

v.CITY OF MILWAUKEE.

No. 65.

Supreme Court of Wisconsin.

May 1, 1914.

Appeal from a judgment of the circuit court for Milwaukee County. W. J. Turner, Circuit Judge. Reversed.

Action to recover damages to plaintiff's property claimed to have been caused by an illegal change of grade of a street in the defendant city upon which, at the point in question the plaintiff's lot abuts.

The complaint was to the effect that defendant trespassed upon its premises by participating with the Chicago, Mil. & St. P. Ry. Co. in cutting down that part of Kinnickinnick Avenue upon which its land abuts to correspond to an alleged re-established grade of such street, the street having been prior thereto duly shaped to an established grade which had not been legally changed. The claim of the defendant was that the acts complained of were committed wholly by the railway company to enable it to comply with an ordinance of the defendant as to elevating the railway tracks so that ordinary travel upon the street could pass under such track and that plaintiff failed to protest against such acts for length of time as to preclude it from using any remedy to recover compensation for injury to its lands by reason of such acts other than the statutory remedy under section 1852, Statutes.

These facts were established: A long time prior to the occurrence complained of the street in question was duly worked to an established grade, as claimed by plaintiff. The regrading of the street involved a very material physical change thereof. No efficient proceedings were taken by the defendant to change the legal grade of the street. Plaintiff knew of the intention to lower the street in front of its land a considerable length of time before it occurred, knew of the purpose thereof, knew of the operations to that end as they progressed and did not make any complaint until some time after the city ceased actively to make a legal change of grade.

At the close of the evidence defendant's counsel moved for a dismissal upon the ground that it appeared from the evidence, as matter of law, that plaintiff's sole remedy for the taking of its property was against the railway company under the eminent domain statute.

The motion was denied. The court then submitted the question of damages to the jury, resulting in a verdict assessing such damages at $1,000. Judgment was rendered for plaintiff accordingly.Daniel W. Hoan, City Atty., and Clifton Williams, Asst. City Atty., both of Milwaukee, for appellant.

Quarles, Spence & Quarles, of Milwaukee (I. A. Fish, of Milwaukee, of counsel), for respondent.

MARSHALL, J.

[1] The question here is this, should not respondent have made its claim solely against the railway company? The street was not cut down for street purposes but for railway purposes. Had it not become necessary for the railway company to raise its tracks, no change in the physical characteristics of the street would have occurred. The city had ample power to change the grade for ordinary street purposes by taking proper proceedings to that end; but not to enable the railway company to maintain its tracks in or across the street, nor make the railway company its agent therefor. That seems so on principle and in spirit, at least, this court so concluded in Buchner v. C. & N. W. Ry. Co., 60 Wis. 264, 19 N. W. 56.

The city charter of Milwaukee, as to grading and changing grades, has reference to shaping streets for street purposes but not to aiding in the construction or maintenance of a railway. The only power a railway company has for interference with a public street or highway, is referable to section 1828, subd. 5, of the statutes, which confers upon such company, subject to the provision of section 1836, authority “to construct its railroad across, over, under, along or upon any * * * highway, * * * to carry any highway * * * over or under its track, as may be most expedient for the public good; to change the course and direction of any highway, * * * when made necessary or desirable to secure more easy ascent or descent by reason of any embankment or cut made in the construction of the railroad and take land necessary therefor,” etc.

The subject condition is: “Shall restore * * * every highway * * * across, along or upon which said railroad may be constructed to its former state or to such condition as that its usefulness shall not be materially impaired. * * *”

The company, here, did not obtain any authority from the city, except within the field of police power. Therefore, the mere fact that city officials furnished plans for the work and looked after it as regards city regulationsdid not change the nature of the work. It was a railroad matter from start to finish, referable, not to any power which the city possessed to lower the street, but wholly that conferred upon the railway company by statute. Buchner v. Railway Co., 56 Wis. 403, 14 N. W. 273;Shealy v. C. M. & N. Ry. Co., 72 Wis. 471, 40 N. W. 145;Shealy v. Railway Co., 77 Wis. 656, 46 N. W. 887.

The foregoing seems to answer the claim that the appellant was a joint trespasser with the railway company. To restate the matter, in brief, appellant did not confer any authority on the railway company to cut down the street for railway purposes. It did not possess power to do so. The street was cut down for such purpose. The statute conferred authority so to do subject to the obligation of the railway company to restore the usable condition of the street and to compensate for the land taken and injury done. The city possessed authority of a police character to supervise the railway company's operations. That, without authority, it commenced some proceedings purporting to be for the purpose of changing the grade of the street, obviously, for the benefit of the railway company does not cut any figure in the case.

Whether the interference with the street for some distance back from the old right of way and in front of plaintiff's lot, which did not abut on such way, was a taking for railway purposes, affording the owner the right to due compensation under the eminent domain statute, is ruled in the affirmative by the cases cited. They are precisely like this case, except that the disturbances there were in the original construction, while here it was for the purpose of a change which the city required under its police power to be made.

In the last case cited the court said: “The lowering by a railway company of the grade of the highway, in order to adjust such grade to that of its track laid across the highway,” is “a taking of property of the owner of the lots abutting on the highway, for which, and for the subsequent injury to such lots, the company must make compensation, though the track itself” does “not encroach upon that part of the highway of which the fee” is “in the owner. In case the railway company, in order to perform the legal duty to restore the highway it occupies...