Schuster v. Milwaukee Elec. Ry. & Light Co.

• Decision Date: 26 April 1910
• Citation: 126 N.W. 26,142 Wis. 578
• Parties: SCHUSTER ET AL. v. MILWAUKEE ELECTRIC RY. & LIGHT CO. ET AL.
• Court: Wisconsin Supreme Court

142 Wis. 578

126 N.W. 26

SCHUSTER ET AL.

v.MILWAUKEE ELECTRIC RY. & LIGHT CO. ET AL.

Supreme Court of Wisconsin.

April 26, 1910.

Appeal from Circuit Court, Milwaukee County; A. H. Reid, Judge.

Action by George J. Schuster and others against the Milwaukee Electric Railway & Light Company and others. Judgment for plaintiffs, and defendants appeal. Affirmed.Miller, Mack & Fairchild, for appellants.

Rodger M. Trump and Van Dyke & Van Dyke (George D. Van Dyke, of counsel), for respondents.

TIMLIN, J.

With commendable and lawyerlike precision the argument of appellants' counsel starts out with this proposition: “The one question involved is the character of relief to which respondents are entitled. That they are entitled to relief either in this action or at law is not denied.” The premises may be stated as follows: Each of the plaintiffs owns a separate piece of land abutting on the south side of Wells street in the city of Milwaukee, which under the laws of this state extends to the center of the street, and that part underlying the street is subject to the public easement for travel and other ordinary street purposes, including the maintenance and operation of a street railway thereon, but is not subject to the additional burden of an interurban railway or cars thereon. On each of these pieces of land is a large and costly dwelling occupied by the owner of that piece. The Milwaukee Electric Railway & Light Company is a street railway corporation, lawfully maintaining its tracks, wires, and poles in Wells street, and overlying the lands of plaintiffs in the street, and it maintains and is operating street cars thereon for the carriage of passengers, and propelled by electricity. The Milwaukee Light, Heat & Traction Company is an interurban railway company, having its easterly or nearer terminus outside of the city limits of Milwaukee, and its further or westerly terminus at Watertown, Wis. It is engaged in the transportation of interurban passengers, and operates at present between Milwaukee and Watertown and the intermediate stations. The roadbed, rails, wires, and poles of both corporations are continous, and no physical peculiarities in this respect mark the place where the property of the first corporation ends and that of the second begins. The cars of the interurban company are larger and heavier than the street railway cars, are usually run at greater speed, and are sometimes in trains of two or more cars, and are furnished with closets for the accommodation of passengers. By contract with the street railway company the interurban company runs its cars down Wells street, and over the lands of plaintiff, which are subject to the said street easement, and has been so doing since September A. D. 1899, which was less than 10 years prior to the commencement of this action. These interurban cars do not, like the street cars, stop at street crossings upon signal for the reception and discharge of passengers after they enter the city, but stop only between the city limits and a downtown passenger station for the discharge of the interurban passengers who desire to alight at intermediate points. The interurban railway company has never received from the city of Milwaukee any permission or authority to operate interurban cars on Wells street, and the street railway company is limited by its franchise from the city to the operation of street railway cars.

The trial court found the plaintiffs bound by no estoppel and barred by no laches, and enjoined defendants and each of them from maintaining or operating over or upon the premises of the plaintiffs, or over and upon Wells street in the vicinity of said premises, any interurban cars. The appellants contend that the respondents have been guilty of such laches as to bar relief in equity and remand them to an action at law for damages, or at least of such laches as, considering the comparatively small damages to the plaintiffs and the great damage to defendants, and the loss and inconvenience to the public, to justify or require a court of equity to award compensation to the plaintiffs in lieu of an injunction. Legal conclusions involved in the foregoing concession of counsel and in the stated premises are supported by La Crosse, etc., Co. v. Higbee, 107 Wis. 389, 83 N. W. 701, 51 L. R. A. 923;Zehren v. Milwaukee, etc., Co., 99 Wis. 83, 74 N. W. 538, 41 L. R. A. 575, 67 Am. St. Rep. 844;Younkin v. Milwaukee, etc., Co., 120 Wis. 477, 98 N. W. 215;Beloit, etc., Co. v. Macloon, 136 Wis. 218, 116 N. W. 897, and other cases in this court.

The trial court found, in substance, that shortly before September A. D. 1899, when the interurban cars began to run on Wells street, the interurban company expended about $137,000 in constructing a roadbed outside of the city and otherwise, but the respondents did not know of this expenditure, or of the intention to run these interurban cars on the tracks of the street railway on Wells street until such use began; that since this use began there was no material improvement made, and no considerable amount of money expended by either defendant on Wells street, except for current repairs or for ordinary street railway purposes, and no material improvements or material expenditure of money made by defendants upon the faith of any supposed acquiescence of the plaintiffs, or either of them. Plaintiffs had, during a great part of this time, no actual knowledge of their legal rights with reference to the passage of these interurban cars, and the defendants during the same time also supposed they had a lawful right to do what is here sought to be enjoined. The size of the cars, the speed of the trains, and the frequency and size of interurban trains passing in front of plaintiffs' premises has increased from time to time, and it is found that this use of the street for interurban traffic on days when such traffic is heavy, which includes the summer time, causes dust, noise, vibration, and discomfort, thereby injuring plaintiffs in the use and enjoyment of their property, and causing a depreciation in the market value of such property. There is no finding and no definite evidence fixing the amount in money of such damage or depreciation, but the court finds that the damage to the plaintiffs is substantial. We agree with the court below that there is here shown no estoppel against the plaintiffs, and no such laches as would absolutely bar them from all relief in equity, in a case where the legal remedy is inadequate, and the plaintiffs seek by injunction to prevent an unlawful taking of their property.

However it may be elsewhere, it is settled in this state that: “Mere delay is not a bar in equity ordinarily where it would not be a bar at law, and obviously it is not a bar where there is a statutory period covering the identical subject short of such period. Angell on Lim. § 25; Godden v. Kimmel, 99 U. S. 201 . To constitute a bar where the statute has not run there must be delay, together with facts and circumstances occurring during such delay to the prejudice of innocent parties.” Kropp v. Kropp, 97 Wis. 137, 145, 72 N. W. 381, 383. “Mere delay within the statutory period for relief at law does not preclude a recovery in equity, and at most that is all which appears here. Knowlton v. Walker, 13 Wis. 264. If delay were shown, and in the meantime a change in the situation of the parties or the property, so that it would be unconscionable on that account to allow plaintiff at the late day to successfully assert his claim, the question would be different.” Ellis v. Southwestern L. Co., 102 Wis. 400, 407, 78 N. W. 747, 749. In a case where the delay had been for 18 years, but the wrong constituted a periodically recurring nuisance, the objection of laches was upon these principles overruled (Cedar Lake Hotel Co. v. Cedar Creek H. Co., 79 Wis. 297, 48 N. W. 371), and in Ludington v. Patton, 111 Wis. 208, 245, 86 N. W. 571, 582, it was said in deciding this point: “Any mere delay short of the statutory period for commencing an action in equity does not bar the right involved.” It must also be borne in mind that in this state a final injunction against the unconstitutional taking of private property, even for public purposes, without compensation is not a matter of grace, but a matter of right, except as otherwise provided by statute. An injunction against a railroad company which had appropriated the land of another was at first expressly authorized (chapter 80, Laws 1858; Davis v. Milwaukee, etc., R. R. Co., 12 Wis. 16), then forbidden by statute any time prior to the appraisal of damages by commissioners, and unless their award remained unpaid (chapter 175, Laws 1861; Andrews v. Farmers' L. & T. Co., 22 Wis. 288). This last legal condition was continued by chapter 119, Laws 1872, and chapter 291, Laws 1873, which are now in force as section 1852, St. 1898. These statutes, while depriving the landowner of the injunction as an initiatory remedy, conferred upon him the right, in all cases in which the railroad company possessed the power of eminent domain, but had failed to exercise it, and had entered upon the land with the express or tacit consent or acquiescence of the landowner, to himself institute and carry on condemnation proceedings. But when the award was not paid or was invalid, or there was no consent or acquiescence by him, the landowner was entitled to an injunction “ex debito justitiæ,” as was said in Bohlman v. Green Bay & M. Ry. Co., 40...