State ex rel. Grady v. Chi., M. & N. R. Co.
Decision Date | 17 March 1891 |
Citation | 79 Wis. 259,48 N.W. 243 |
Parties | STATE EX REL. GRADY v. CHICAGO, M. & N. R. CO. |
Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Green county; JOHN R. BENNETT, Judge.B. Dunwiddie, for appellant.
P. J. Clawson and B. J. Stevens, for respondent.
The relator is the owner of a farm across which the defendant company has constructed its railway track, dividing the farm into two separate parcels. The company has been operating its road, running daily trains of cars over the same, for more than a year, but has neglected to construct suitable farm crossings for the convenience of the relator in passing with his teams and stock from one part of his premises to the other; and this application is for a mandamus to compel the company to construct proper crossings. On motion, the alternative writ was quashed, and the appeal is from the order quashing the writ. In support of the decision of the circuit court, it is argued that the petition does not state facts showing that the relator is entitled to the relief demanded; in other words, that it fails to show that it is the duty of the company to construct such farm crossings. This is a mistake as to the duty which the statute imposes on the company. Chapter 193, Laws 1881, which amends section 1810 of the Revised Statutes, provides, in effect, that every railroad corporation operating any railroad shall erect fences on both sides of its road of the height prescribed, with openings or gaps or bars therein, and suitable and convenient farm crossings of the road for the use of the occupant of the lands adjoining. Thus, it will be seen, the statute imposes a distinct and absolute legal duty upon the company to construct these farm crossings. The language of the statute is clear and specific, and cannot be made plainer by illustration or argument. It is imperative or mandatory, requiring the corporation to perform its legal duty. It is said it appears from the petition that there is a public highway which runs along on the east side of the relator's farm, and connects the two portions thereof, and that where the railway crosses this highway a bridge has been built over a deep cut, which, it is claimed, answers every purpose of a farm crossing. We can make no such an inference from the matters stated in the petition, nor hold that the bridge meets the requirements of the statute, and relieves the company from the duty of constructing any other farm crossing. It is possible that the company can show by evidence that this bridge on the highway fully answers the end and object of the statute, but we cannot presume that it does. On the contrary, as the statute, in absolute terms; makes it the duty of the company to construct farm crossings for the use of the occupants of the adjoining lands, the company is under obligation to show some valid excuse for neglecting to perform its duty. We therefore hold, as the duty of the company was absolute and clear to make the proper farm crossings, unless there is some other objection to granting the writ, it was error to quash it on the facts stated. Again, it is said the court always refuses to grant a writ of mandamus where...
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