Younkin v. Milwaukee Light, Heat & Traction Co.

• Decision Date: 05 November 1901
• Citation: 87 N.W. 861,112 Wis. 15
• Court: Wisconsin Supreme Court
• Parties: YOUNKIN ET AL. v. MILWAUKEE LIGHT, HEAT & TRACTION CO.

112 Wis. 15

87 N.W. 861

YOUNKIN ET AL.

v.MILWAUKEE LIGHT, HEAT & TRACTION CO.

Supreme Court of Wisconsin.

Nov. 5, 1901.

Appeal from circuit court, Waukesha county; James J. Dick, Judge.

Action by Ornie Younkin and others against the Milwaukee Light, Heat & Traction Company. From an order overruling a demurrer to the complaint, defendant appeals. Reversed.

This is an appeal from an order overruling a demurrer to a complaint alleging, in effect, that at the time of the commencement of the action the several plaintiffs were the owners in fee simple and in severalty of the several lots of land therein described, each lot fronting and abutting upon Lincoln avenue in the city of Waukesha, such lots having an aggregate frontage on both sides of said avenue of about 2,000 feet, being between Hartwell avenue and the eastern limits of the city of Waukesha; that the title of the respective plaintiffs to said several lots extended to the center line of Lincoln avenue, subject only to the right of the public to travel over and upon that avenue, and to use the same as and for a public highway; that Lincoln avenue was the main highway in the city, and was 60 feet wide, and had been dedicated to the public as a highway, and ever since such dedication had been the main thoroughfare running through the city; that the defendant was a corporation, created and organized under and by virtue of chapter 86, and sections 1862 and 1863 of chapter 87, of the Revised Statutes of this state, and the laws amendatory thereof and supplemental thereto, December 14, 1898; that its business was and is, under its articles of incorporation, to construct, equip, maintain, and operate street railways in the city and county of Milwaukee and elsewhere in this state, and to purchase or otherwise acquire, take, hold, and operate real and personal property, rights, privileges, ordinances, and franchises, and any other enterprise suitable for or in furtherance of the business and purpose of such corporation, as more fully appears from a copy of the articles of incorporation thereunto annexed and made a part thereof; that by virtue of such articles the defendant claims to be authorized and empowered to build and operate a street railway system, to be propelled by electric or other power, for the transportation and carriage of passengers, mail, express, merchandise, and other freight in the city and county of Milwaukee and elsewhere in this state; that in pursuance of such authority the defendant, in May, 1898, caused to be built, constructed, and equipped an electric railway from the city of Milwaukee to Pewaukee Lake, at a point about seven miles northwesterly from the city of Waukesha; that such electric railway line passed and now passes through the city of Waukesha, and in so doing traversed and now traverses said Lincoln avenue over its entire length, of about one-half a mile, from the eastern limits of the city of Waukesha to Hartwell avenue; that such system and line of railway was and is of the overhead trolley system throughout its entire length, and for the operation of the same used a large copper wire, suspended about 18 feet above the track, held in place by numerous poles 20 feet high planted upon each side of the track, from which were strung other wires to connect with and suspend such trolley wires; that such wires were at all times heavily charged with electricity for the operation of cars and trains upon said railway; that prior to August 1, 1900, the defendant had but one railway track on Lincoln avenue, and that was located in the center of that avenue, and consisted of heavy T rails upon wooden ties; that since that time the defendant moved such track and constructed another additional track, of similar materials and construction, in Lincoln avenue, and over and upon its entire length, in the city of Waukesha; that in such construction and equipment of said double-track system over and upon Lincoln avenue a great amount of excavation of the surface of that street had been done by the defendant, and the same has been wholly impassable for teams or other vehicles of the plaintiffs or the public for a great length of time, and is still so impassable; that ever since May 18, 1898, the defendant has caused said railway system to be used and operated wholly as a commercial railway, propelling cars with passengers, baggage, and freight over its line on Lincoln avenue every hour; that said railway line and system as operated in no manner lessens or tends to lessen or relieve the streets of the city of Waukesha from travel; that said railway has been so operated wholly without the permission or consent of the plaintiffs or any of them, and against their wishes and protests, and without any compensation whatever to the plaintiffs therefor, and without any right or authority of law; that said railway so operated destroys the use of Lincoln avenue as a public highway, and prevented and still prevents the plaintiffs from having access to and egress from their premises, and seriously interferes with and impairs the use and enjoyment by the plaintiffs of their premises and homes and business, and has and will greatly injure and depreciate the value of the property of each of them; that by reason of the premises the plaintiffs and each of them is made to suffer continuously irreparable injury, and that they have no adequate remedy at law. “And the plaintiffs further allege that, by reason and because of the wrongful and unlawful location, construction, and operation of said railway upon their said premises within said Lincoln avenue, said plaintiffs have already suffered and sustained damages in the sum of five thousand dollars. And the plaintiffs further allege that the aforesaid unlawful and wrongful location, construction, and operation of said railway over and upon their said premises, within said Lincoln avenue, as aforesaid, and the maintenance of the same therein, is a nuisance to said plaintiffs and to each of them.” The complaint prays the judgment of the court that the plaintiffs have and recover of and from the defendant the said sum of $5,000 damages, which they have already suffered and sustained; that said railway tracks, ties, poles, wires, and other erections of the defendant within the limits of Lincoln avenue and upon the lands and premises of the plaintiffs, constituting the nuisance complained of, be abated and removed from said street, and from the several lots, pieces, and parcels of land of the plaintiffs, lying and being within the limits of said highway; that the defendant, its officers, agents, and employés, and successors, assigns, and lessees, be perpetually enjoined and restrained from further erecting any obstructions upon, or in any manner interfering with, the lands and premises of the plaintiffs, or any of them; and for costs.

Ryan & Merton, for appellant.

Tullar & Lockney and Clasen & Walsh, for respondents.

CASSODAY, C. J. (after stating the facts).

The defendant contends that the complaint does not state facts sufficient to constitute a cause of action. This is put upon the ground that such commercial railway, with a single track, had been constructed and operated by the defendant for two years prior to the commencement of this action, with the knowledge and acquiescence of the plaintiffs, and hence with their tacit consent, and, therefore, that the plaintiffs could not object to such proposed construction of such double track, but were severally relegated to their remedy by condemnation proceedings under section 1852 of chapter 87 of the Revised Statutes. In support of such contention, counsel cite numerous adjudications of this court, following Buchner v. Railway Co., 56 Wis. 403, 14 N. W. 273, and 60 Wis. 264, 19 N. W. 56, so holding in the case of ordinary steam railways. The difficulty with such contention is that this defendant was incorporated and organized under chapter 86, and sections 1862, 1862a, 1863, 1864, and 1864a of the Revised Statutes of 1898, relating especially to street railways. Section 1863a did provide for condemnation by such “street or electric railroad corporations,” but expressly “provided that nothing herein shall apply to any street, alley, viaduct, park, or boulevard in any city or village.” That provision was taken from chapter 175, Laws 1897, instead of chapter 251, as indicated in the Revised Statutes of 1898. May 2, 1899, section 1863a was amended by striking out the second sentence therein, and inserting in lieu thereof, among other things, the following: “All the provisions of subdivision 6, section 1828, of these Statutes, relative to railroad crossings, shall apply to street and electric railways,”--but continuing therein the proviso copied above from section 1863a. Such were the statutes relating to the subject of condemnation proceedings by street railway companies when...