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

• Decision Date: 12 January 1897
• Citation: 69 N.W. 791,95 Wis. 29
• Parties: WRIGHT ET AL. v. MILWAUKEE ELECTRIC RAILWAY & LIGHT CO.
• Court: Wisconsin Supreme Court

95 Wis. 29

69 N.W. 791

WRIGHT ET AL.

v.MILWAUKEE ELECTRIC RAILWAY & LIGHT CO.

Supreme Court of Wisconsin.

Jan. 12, 1897.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by Samuel Wright and others, as property owners, against the Milwaukee Electric Railway & Light Company, to enjoin the laying of street-railroad tracks in a street. From an order granting an injunction pendente lite, defendant appeals. Reversed.

This is an action in equity brought by three property owners, owning lots abutting upon Twenty - Seventh street, otherwise called “Washington Avenue,” in the city of Milwaukee, to obtain a permanent injunction against the Milwaukee Electric Railway & Light Company, enjoining it from laying street-railway tracks through said street in front of the plaintiffs' property. A temporary injunctional order was made pendente lite, and the defendant appealed. The facts appearing upon the complaint and the affidavits filed upon both sides on the hearing of the motion for an injunction were not materially in dispute, and are substantially as follows: On the 1st of June, 1874, an ordinance was passed by the common council of the city of Milwaukee granting John H. Tesch and others and their successors and assigns the right to lay street-railway tracks upon certain streets in the city of Milwaukee, named in the ordinance, and to maintain and operate a horse railway thereon until the 1st day of July, 1924. The street in question in this suit was not included within the ordinance. The ordinance provided that the grantees and their assigns should complete and operate two miles of railway within two years from the 1st day of July, 1874, and the entire balance of the lines within 10 years from that date, “and, upon the failure to complete and operate the said railway as above provided, then all rights hereby granted and vested shall cease and determine.” The ordinance contained further conditions and requirements as to the cars and tracks, and the use thereof, and the rate of the fare, but did not contain any further provisions as to forfeiture of the rights granted, by nonuser. Under this ordinance, a street railway was constructed upon all the streets named in the same, and within the time required by the conditions of the ordinance. In August, 1886, said railway had passed into the hands of the West Side Street-Railway Company, by purchase and assignment; one of its lines running from the central portion of the city west on Grand avenue and Wells street, and crossing Twenty-Seventh street near the west city limits. At the time, it was proposed to hold the State Fair upon certain grounds in the city of Milwaukee, and about four blocks north of Wells street; and it was made a condition upon which the holding of the fair in Milwaukee depended that a street-railway line should be completed by the West Side Railway Company to the proposed fair grounds. It appears further that the railway company consented to construct said line from Wells street north, on Twenty-Seventh street, for a distance of four blocks, provided the city would grant them a franchise therefor. Thereupon an ordinance was passed by the city council August 2, 1886, granting to the railway company, its successors and assigns, the right to lay such railway track along said Washington avenue, or Twenty-Seventh street, commencing at Wells street, and running thence northerly four blocks to Chestnut street; such ordinance being granted under and subject to the same conditions as were provided in the previous ordinance herein named. In accordance with this ordinance, in September, 1886, a double horse-railway track was laid in said street, and the same was operated in September, 1886, during the holding of the State Fair. From this time, until and including the fall of 1891, the railway was operated upon said street during the holding of the State Fair in each year, and at other irregular intervals, when circuses were held upon the fair grounds, but in the intervals the road along these four blocks was not operated. In the year 1889 an ordinance was passed by the city council authorizing the use of electricity as a motive power upon the street railways operating in Milwaukee, and in 1890 the lines of the railway company, including the line upon the four blocks in question, were equipped with trolley poles and wires, and thereafter operated by electricity. In September, 1891, the lines and franchises of the West Side Street-Railway Company had come by purchase and assignment into the ownership of the West Side Street-Railroad Company, and a contract was made in that month for the sale of all the stock of the said last-named company to the North American Company, in the interest of a new corporation, called the “Milwaukee Street Railway Company”; the contract being made to the North American Company pending payment of the purchase price. It was apparently expected at the time of the making of this contract that the possession of the North American Company was to be temporary only, but, by reason of financial difficulties, no conveyance was made to the Milwaukee Street-Railway Company until January, 1894. In the meantime it was ascertained that the ordinary horse-railway track was too lightly constructed for the purposes of an electric railroad, and that, before any continuous operation by electricity, new and heavier rails must be laid. In the summer of 1892 the city of Milwaukee caused to be paved with cedar blocks the two blocks in question, at the expense of the adjoining property owners, and the rails of the street-railway company were taken up; but the electric poles and wires, except the trolley wire, were left in place. These two blocks remained in this condition until May 24, 1896, and they are the two blocks in question in this action. The remaining two blocks covered by the franchise were not paved, and they have been operated continuously at all times. The Milwaukee Street-Railway Company acquired, by conveyance, all of the street-railway property in Milwaukee, including this franchise, in January, 1894; and mortgaged its property and franchises at the same time to the Central Trust Company of New York. Foreclosure of this mortgage was commenced May 24, 1895. In the fall of 1895 the remaining two blocks of Twenty-Seventh street covered by the franchise were paved with cedar blocks, and at the same time the railway thereon was reconstructed with an appropriate electric roadbed and rails. December 2d of the same year, an ordinance was introduced in the common council repealing certain street-railway franchises, and including the franchise for the two blocks in question here, and the same was referred to the railway committee. In January, 1896, a sale was made under a final decree in foreclosure, which had been previously entered, by which all the street-railway properties of the Milwaukee Street-Railway Company were sold and conveyed to the Milwaukee Electric Railway & Light...