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

• Decision Date: 22 March 1898
• Citation: 74 N.W. 538,99 Wis. 83
• Court: Wisconsin Supreme Court
• Parties: ZEHREN v. MILWAUKEE ELECTRIC RAILWAY & LIGHT CO. ROBRAN v. MILWAUKEE ELECTRIC RAILWAY & LIGHT CO.

99 Wis. 83

74 N.W. 538

ZEHREN

v.MILWAUKEE ELECTRIC RAILWAY & LIGHT CO.

ROBRAN

v.MILWAUKEE ELECTRIC RAILWAY & LIGHT CO.

Supreme Court of Wisconsin.

March 22, 1898.

Appeals from superior court, Milwaukee county; George E. Sutherland, Judge.

Separate actions by Nicholas Zehren and Charles Robran against the Milwaukee Electric Railway & Light Company. From separate orders in each case denying its motions to vacate temporary restraining orders therein issued, defendant appeals. Affirmed.

These are two actions in equity brought to permanently enjoin the defendant railway company from grading down the highway in front of the residences of the plaintiffs, and from laying an electric street railway thereon. The cases are identical in their facts, and but one statement will be necessary. The facts appearing by the complaint and the affidavits used upon the motion to dissolve the preliminary injunction were substantially as follows: Oakland avenue is a highway 60 feet in width, and running north and south in the city of Milwaukee, and extends northward into the town of Milwaukee, and reaches the village of White Fish Bay, which is an incorporated village of four or five hundred inhabitants, whose southern boundary is about 1 1/2 miles north from the northern boundary of the city of Milwaukee. The plaintiffs own, respectively, two small lots, on which they reside, fronting on the east side of this highway, about one-quarter of a mile north of the city limits of Milwaukee. This highway has existed and been traveled by ordinary travel for many years, during all of which time there has been a grade in front of the plaintiffs' lots, ascending to the north about 1 foot in 21, and the plaintiffs' lots are now 4 or 5 feet above the grade. This grade extends for a distance of 800 feet along the highway, and for an additional 300 feet there is a grade of 1 foot in 30 feet. Most of the property on the highway from the city limits north past the plaintiffs' lots has been platted into city lots, and many of the lots have been sold; but the greater part of them are held by nonresident owners for sale, and are not occupied or improved. There are about 25 actual residents upon the road from the limits of the city to the limits of White Fish Bay. The village of White Fish Bay is composed largely of people doing business in Milwaukee. The defendant owns and operates substantially the entire electric street-railway system of the city of Milwaukee, and carries passengers only. In the summer of 1897 many of the inhabitants of White Fish Bay desired an extension of the defendant's electric street railway on Oakland avenue to the village of White Fish Bay; and the defendant was desirous of making that extension, but it declined to build the line unless the steep grade above mentioned was considerably reduced; and, after negotiations with the town board of the town of Milwaukee, a written agreement was made between the defendant and the town board, August 17, 1897, by which the defendant was allowed to build its electric road for passenger service upon Oakland avenue, past the plaintiffs' premises, and to operate it under certain conditions for 50 years, provided that it would grade the highway at its own expense, and save the town harmless from all damages by reason of the change of grade, such new grade being made according to a profile attached to the agreement. By this agreement and profile the highway was to be cut down in front of the plaintiffs' lots, and for a long distance on either side of them, and was to be filled in at other places so as to reduce the grade. The depth of the cut in front of the plaintiffs' premises was about 8 feet, and the width of the cut at the bottom 36 feet, with the sides sloping back on each side to the street line. Afterwards, on October 16th following, the town board made an order fixing the grade of the street as indicated in the profile. A large proportion of the property owners on the highway along the line of the proposed change consented, in writing, to the change; but others, including the plaintiffs, did not consent. By the change proposed, the lots of the plaintiffs were to be left from 12 to 14 feet above the roadbed, and access to them by team will be either entirely cut off or made very difficult. A temporary restraining order was obtained upon the complaint, and accompanying affidavits in each case at the commencement of the actions. Afterwards the defendant appeared, and, upon affidavits, moved in each case to vacate the order, which motions were denied, and the defendant appeals in both cases.

Miller, Noyes, Miller & Wahl, for appellant.

O'Connor, Hammel & Schmitz, for respondents.

WINSLOW, J. (after stating the facts).

The defendant proposes to construct and operate an electric street railway for the carriage of passengers upon a highway in a country town outside of the city limits of Milwaukee, and, for that purpose and by permission of the town authorities, to cut down the highway about eight feet, so that an abutting owner's right of access to his property will be seriously impaired; and the question is whether this can be done without the consent of the abutting owner, and without the payment of compensation to such owner. The question is a new one in this court, and one the importance of which, in view of the rapid development of electric power as a means of carriage for long distances, can hardly be overestimated. If the highway in question in this case can be so used, the question at once arises whether every country highway may not be used in the same way. If it be said that the highway before us in this case is in effect a city street because of its close proximity to the city, and because the adjoining lands are platted, and because it connects a suburban village with the city, and that a clear distinction ought to be drawn between such a highway and the ordinary country road in farming districts, the inquiry will then be: Can such a distinction be practically drawn, and can it be satisfactorily applied, and upon what solid grounds will it rest? A distinction so important must in reason be one which can be drawn with some reasonable degree of certainty in every case, and must be capable of practical application. Is the line to be drawn according to density of population, and, if so, what degree of density is to be the test? Is it to depend upon the activity and hopefulness of adjoining landowners in platting their land into building lots, or upon the question whether a neighboring village or town can properly be called a suburb of the principal city? Or is it to depend upon a judicious consideration of all these conditions massed together, and upon a conclusion to be evolved from the entire mass, which will determine the answer to the question in each particular case, but in no other? Or, on the other hand, must it be held that, in order to make a highway a city street, it must lie within the corporate boundaries of the city, and that outside of those boundaries no reasonable or practicable distinction can be drawn based either on proximity to the city, or on platting of lands or density of population, or upon the fact that the highway connects the city with a neighboring suburban village? These are all important questions, which, as before indicated, are new in this court, and demand careful consideration.

It was long ago held by this court, following the well-nigh universal current of authority, that a horse railway constructed upon grade in a city street, and by permission of the city authorities, was not an additional burden upon the fee, and that the adjoining landowner was not entitled to compensation therefor. Hobart v. Railroad Co., 27 Wis. 194. In a recent case it was further held by this court that an electric railway constructed under a charter authorizing it to carry passengers, merchandise, baggage, mail, and express matter, and running from city to city, was not a street railway, within the meaning of the Hobart Case, so far as it passed over the highways of intervening country towns, and that it could not use such highways without the consent of or compensation paid to the owners of the abutting real estate. Chicago & N. W. Ry. Co. v. Milwaukee, R. & K. Electric Ry. Co., 95 Wis. 561, 70 N. W. 678. No other decisions directly bearing on the controversy before us now have been made in this court, and it is manifest that neither of the cases referred to is decisive of the questions here involved. In other courts there have been decisions holding more or less directly that an electric street railway upon a city street constructed with poles and a trolley wire stands in the same legal situation as a horse railway, and does not constitute necessarily an additional burden to the fee. These cases will be found cited in the note to section 83 of Booth on Street Railways, although it is entirely clear that the cases cited do not all support the broad proposition which the writer lays down. Most of these cases were reviewed by Ragan, C., in Jaynes v. Railway Co. (Neb.) 74 N. W. 67, and it is not deemed necessary to review them in this opinion, as the question is not before us. The Nebraska case cited seems to reach the conclusion that if an electric street railway on a city street moves its cars without occupying permanently any part of the street with poles or wires, as, for instance, by storage batteries, it does not constitute an additional burden simply because the motive power is electricity; but that the planting of poles in the street, so as to interfere with an abutting owner's right of access to his property, will constitute an additional burden, for which compensation must be made. We have been referred to no case which squarely holds that the mere fact that the cars upon a street railway in a city street are propelled by electricity by the overhead trolley system, instead of by animal power, makes the railway, as a matter of law, an additional...