Milwaukee Electric Railway & Light Co. v. City of Milwaukee

Street railways: Franchises: Forfeiture, how decreed. While the state has delegated to cities the authority to act for it and on its behalf in granting franchises to build and operate street railways, it has not granted to them the power to institute and maintain actions to forfeit such franchises for misuse or abuse. Such a forfeiture cannot therefore be decreed in a suit in equity brought by the city, but must be adjudged by action in the name of the state under sec. 3241, R. S. See note to this case in 3G L. R. A. 45.— Rep.

Appeal from orders of the superior court of Milwaukee county: R. N. AustiN, Judge. This is an action in equity, brought by the plaintiff company, to enjoin the city of Milwauleee from tearing up or removing the tracks which it had commenced to lay on the 24th day of May, 1896, on two'blocks of Washington avenue, or Twenty-Seventh street, in the city of Milwaukee, between Wells street and Chestnut street. These are the same blocks involved in the action of Wright v. Milwcmlcee Electric B. & L. Oo., ante, p. 29; and this action is a branch of the same contest. The facts stated in that case will not be restated. It is sufficient for the purposes of this appeal to state that after the preliminary injunctional order had been issued and served in the Wright Case, preventing the street-railway company from completing its tracks on the blocks in question, and on the 25 th day of May immediately following, the board of public works of the city of Milwaukee made a written order and served the same upon the railway company, directing it to repave and restore the street and remove all the railway tracks, ties, and other obstructions therefrom within twenty-four hours from the service of the order. Thereupon, on the 26th day of May following, the railway company commenced this action, and, upon a verified complaint setting forth its rights in the street and the action of the board of public works, obtained an order to show cause why the board of public works should not be restrained during the pendency of the action from taking up the plaintiff’s tracks and ties, and from interfering with the plaintiff in the construction of the tracks; and until the hearing of the motion a temporary restraining order was granted. The defendant city thereupon appeared, and served an answer setting forth the nonuse of the street by the plaintiff company for more than four years as -a defense to che action, and also setting forth, by way of counterclaim, practically the same facts as to nonuse and abandonment of the street, and prayed a perpetual injunction against the railway company preventing it from constructing its lines or operating its cars upon said street. Upon the hearing of the order to show cause, the plaintiff’s application for an injunction pendente lite was denied, and the temporary restraining order dissolved. Afterwards the motion of the defendant, based upon the .counterclaim, restraining the plaintiff pendente lite from constructing its line or operating cars over the street in question, was- granted. Thereafter the plaintiff served a general demurrer to the defendant’s counterclaim, and, upon argument thereof, the demurrer was overruled. From these three orders, the plaintiff appealed.