Superior Water, Light & Power Co. v. City of Superior

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtPER CURIAM.
Citation174 Wis. 257,183 N.W. 254
Decision Date31 May 1921
PartiesSUPERIOR WATER, LIGHT & POWER CO. v. CITY OF SUPERIOR ET AL.

174 Wis. 257
183 N.W. 254

SUPERIOR WATER, LIGHT & POWER CO.
v.
CITY OF SUPERIOR ET AL.

Supreme Court of Wisconsin.

March 11, 1921.
On Rehearing May 31, 1921.


Appeal from Circuit Court, Douglas County; James Wickham, Judge.

On rehearing. Former opinion affirmed.

For former opinion, see 181 N. W. 113.

Rosenberry, J., dissenting.

[183 N.W. 255]

T. L. McIntosh, City Atty., and Hanitch, Hartley & McPherson, all of Superior (Louis Hanitch, of Superior, of counsel), for appellants.

Charles R. Fridley, of Superior, and H. L. Butler, of Madison, for respondent.


Memorandum Ordering Rehearing.
PER CURIAM.

Upon a motion for rehearing made by respondent the attention of the court is called to the fact that the complaint in the action challenges the right of the city to acquire that portion of the property of the respondent water company located in the state of Minnesota, and while the question was neither urged nor presented upon the argument or in the briefs, the court is of the opinion that the best interests of the parties will be subserved by a decision upon the following:

Upon any proceedings heretofore taken, or upon any proceedings authorized by law, can the city acquire, under the provisions of the Public Utility Law, or under condemnation proceedings, or in proceedings in the nature thereof, or in any manner, title to that portion of the property of the respondent water company located in the state of Minnesota?

It is ordered that a rehearing upon the specific question above stated, and none other, be, and is hereby, granted. The hearing thereof is set for Friday, May 6, 1921.

[183 N.W. 256]

On Rehearing.
OWEN, J.

Upon motion for rehearing attention was called to the fact that the opinion of the court did not deal with the question whether the city could by proceedings in the nature of condemnation provided for by the Public Utility Law acquire that part of the water company's property located in the state of Minnesota, which issue was tendered by the pleadings, though not dwelt upon in the briefs or the oral argument. Apprehension was expressed on the part of the respondent water company that the mandate of this court directing that the demurrer to the complaint be sustained amounted to res adjudicata upon this question, even though not dealt with in the opinion. The question thus raised is an important one, which would no doubt eventually call for the decision of this court, and, while it would ordinarily reach this court on appeal from the order of the Railroad Commission, the court, believing that the interests of the parties would best be promoted by dealing with the question at the present time, to the end that further proceedings on the part of the city to acquire the waterworks plant should take a course in harmony with the view of this court concerning the power of the city to condemn that portion of the plant, an order was entered granting a rehearing upon the following question:

“Upon any proceedings heretofore taken, or upon any proceedings authorized by law, can the city acquire, under the provisions of the Public Utility Law, or under condemnation proceedings, or in any proceedings in the nature thereof, or in any manner, title to that portion of the property of the respondent water company located in the state of Minnesota?”

In response to that question the water company contends that the proceedings under which the city is attempting to secure title to the property of the water company are essentially proceedings in condemnation; that the city is not confining its efforts in such behalf to the taking of so much of the plant of the water company as is physically located in the state of Wisconsin, but that they extend to and include as well that portion of the plant physically located in the state of Minnesota; that the jurisdiction of this state to condemn property and thereby work a transition of title from the water company to the city does not extend to property located in the state of Minnesota; and that the city should be enjoined from any further efforts to secure title to that part of the plant having its physical location in the state of Minnesota, because of such lack of jurisdiction or power on the part of this state.

[1][2] In the first place, it may as well be conceded that the proceedings under which the city is attempting to acquire title to the waterworks plant are condemnation proceedings. Although the Public Utility Law provides (section 1797m78) that any public utility voluntarily accepting an indeterminate permit shall be deemed to have consented to a future purchase of its property by the municipality in which the major part of it is situate for the compensation and under the terms and conditions determined by the commission, and shall thereby be deemed to have waived the right of requiring the necessity of such taking to be established by the verdict of a jury, and to have waived all other remedies and rights relative to condemnation, and by subdivision 4 of section 1797m79 it is provided that any municipality shall have the power, subject to the provisions of the Public Utility Law, to acquire by purchase, as provided in the Public Utility Law, the property of any public utility actually used and useful for the convenience of the public operating under any indeterminate permit, it was held in Connell v. Kaukauna, 164 Wis. 471, 159 N. W. 927, 160 N. W. 1035, Ann. Cas. 1918A, 247, that proceedings on the part of a municipality to acquire the property of a waterworks company under the provisions of the law just...

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9 practice notes
  • Wis. Traction, Light, Heat & Power Co. v. Green Bay & Miss. Canal Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • 20 Octubre 1925
    ...property. Ireland v. T. L. T., 185 Wis. 148, 200 N. W. 642;Superior W., L. & P. Co. v. Superior, 174 Wis. 257, 296, 181 N. W. 113, 183 N. W. 254. A public utility, as defined in section 196.01, so far as pertinent to the situation here, is any corporation that may own, operate, manage or co......
  • Superior Water, Light Power Co v. City of Superior, No. 57
    • United States
    • United States Supreme Court
    • 12 Noviembre 1923
    ...relief. The trial court overruled a general demurrer but this action was reversed by the Supreme Court (174 Wis. 257, 181 N. W. 113, 183 N. W. 254), which held that the act of 1907 (chapter 499), as amended in 1911, was permissible under the reserved power to alter, amend or repeal acts pro......
  • Wis. Tel. Co. v. Pub. Serv. Comm'n of Wis.
    • United States
    • United States State Supreme Court of Wisconsin
    • 12 Enero 1932
    ...burdens as an amendment to the charters of such corporations. Superior W., L. & P. Co. v. Superior, 174 Wis. 257, 181 N. W. 113, 183 N. W. 254. While the public utility law does not confine the right to exercise the functions of a public utility to corporations, it probably is a fact that t......
  • Wis. Power & Light Co. v. Pub. Serv. Comm'n
    • United States
    • United States State Supreme Court of Wisconsin
    • 24 Junio 1935
    ...W. 859, L. R. A. 1916F, 592, the taking of a system of waterworks was spoken of as condemnation. Superior Water, L. & P. Co. v. Superior, 174 Wis. 257, 181 N. W. 113, 183 N. W. 254, assumes that the taking is condemnation, and it was so considered by the Supreme Court of the United States o......
  • Request a trial to view additional results
9 cases
  • Wis. Traction, Light, Heat & Power Co. v. Green Bay & Miss. Canal Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • 20 Octubre 1925
    ...property. Ireland v. T. L. T., 185 Wis. 148, 200 N. W. 642;Superior W., L. & P. Co. v. Superior, 174 Wis. 257, 296, 181 N. W. 113, 183 N. W. 254. A public utility, as defined in section 196.01, so far as pertinent to the situation here, is any corporation that may own, operate, manage or co......
  • Superior Water, Light Power Co v. City of Superior, No. 57
    • United States
    • United States Supreme Court
    • 12 Noviembre 1923
    ...relief. The trial court overruled a general demurrer but this action was reversed by the Supreme Court (174 Wis. 257, 181 N. W. 113, 183 N. W. 254), which held that the act of 1907 (chapter 499), as amended in 1911, was permissible under the reserved power to alter, amend or repeal acts pro......
  • Wis. Tel. Co. v. Pub. Serv. Comm'n of Wis.
    • United States
    • United States State Supreme Court of Wisconsin
    • 12 Enero 1932
    ...burdens as an amendment to the charters of such corporations. Superior W., L. & P. Co. v. Superior, 174 Wis. 257, 181 N. W. 113, 183 N. W. 254. While the public utility law does not confine the right to exercise the functions of a public utility to corporations, it probably is a fact that t......
  • Wis. Power & Light Co. v. Pub. Serv. Comm'n
    • United States
    • United States State Supreme Court of Wisconsin
    • 24 Junio 1935
    ...W. 859, L. R. A. 1916F, 592, the taking of a system of waterworks was spoken of as condemnation. Superior Water, L. & P. Co. v. Superior, 174 Wis. 257, 181 N. W. 113, 183 N. W. 254, assumes that the taking is condemnation, and it was so considered by the Supreme Court of the United States o......
  • Request a trial to view additional results

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