Chicago & Northwestern Railway Co. v. Milwaukee, Racine & Kenosha Electric Railway Co.

Cassoday, C. J.

Milwaukee avenue, at South Milwaukee, runs east and west, and the plaintiff’s railroad tracks cross it nearly at right angles. Its depot grounds at that place extend, east from such tracks along the south side of the avenue, and abutting thereon, for a distance of 200 feet. On the north side of the avenue, and abutting thereon, and immediately east of said tracks, the plaintiff owns a strip of land or right of wray fifty feet in width. The answer expressly admits “ that the plaintiff is the owner of the lands ” so'described, “ within said public street, and to the center line thereof,” on both sides, “subject to the easement vested in the public.” This admission is in accordance with the well-settled rule of law in this state to the effect that the owner of land abutting upon a public street or highway has the legal title to the center of such street or highway, sub *567 ject only to the public easement. Milwaukee v. M. & B. R. Co. 7 Wis. 85 ; Mariner v. Schulte, 13 Wis. 692 . Upon this principle it has been held by this court that the abutting owner has such rights of property in the soil within the limits of a street or highway that he may remove portions thereof, and construct vaults or other areas under the sidewalk, with openings in the walk, and construct projecting bay windows, jprovided he does so in a manner not to interfere with or endanger public travel. Papworth v. Milwaukee, 64 Wis. 389 ; Hay v. Weber, 79 Wis. 590 . The general rule is that, subject to such public easement, the abutting owner has all the rights and remedies of an absolute owner in fee. 3 Elliott, Railroads, § 1085.

Such being the facts and the law in this case, it is obvious that the adjudication of cases arising in certain states and cities where the title to the land within the limits of public streets and highways is vested in the state or the public can have no bearing upon the question here involved, since the title to the land of such abutting owner in such states and cities terminates at the outer lines of the street or highway; and hence such abutting owner in such states and cities can only have, in addition to such public easement, a right of ingress and egress to and from his premises, or, as it is sometimes called, “ an easement of access ” to and from his premises. Id. The question presented, therefore, is whether the construction of the defendant’s track and operating its street railway, as proposed, across tie plaintiff’s tracks, and upon and over the plaintiff’s lands so within Milwaukee avenue, would be merely an exercise of the public easement previously acquired by the construction of that avenue, or an additional servitude and burden, for which the plaintiff, as such abutting owner, is entitled to compensation. In Ford v. C. & N. W. R. Co. 14 Wis. 609, 616 ; S. C. 80 Am. Dec. 791 , DixoN, O. J., speaking for' the court, and following New York and Massachusetts cases, among other things, in *568 effect, said: “ It is too well settled to allow it now to be drawn in dispute before this court that the proprietors of lots bounded by a public street within a recorded town plat or village take to the center of the street, and own the soil, subject to the public easement.” The conclusion is, therefore, “That a railroad company cannot appropriate and occupy it with the track of its road without the consent of such proprietor, or without compensation made to him, and that neither the legislature nor municipal authorities have any power to dispense with such compensation, seems irresistible. . . . The reason is stated in few words by Chief Justice Shaw: ‘The two uses are almost, if not wholly, inconsistent with each other; so that taking the highway for a railroad will nearly supersede the former use to which it had been legally appropriated.’ The dedication to the public as a highway enhances the value of the lot, and renders, it more convenient and useful to the owner. The use by the railroad company diminishes its value, and renders it inconvenient and comparatively useless. It would be a most unjust and oppressive rule which would deny the owner compensation under such circumstances.” Accordingly the court affirmed the judgment granting a perpetual injunction. To the same effect: Hegar v. C. & N. W. R. Co. 26 Wis. 624 ; Pettibone v. Hamilton, 40 Wis. 411 ; Kneeland v. Van Valkenburgh, 46 Wis. 434 ; Burbach v. Schweinler, 56 Wis. 391 ; Norcross v. Griffiths, 65 Wis. 607, 611 . Since such abutting owners have the legal title to the lands in the street, subject only to the public easement, it follows that, whenever such street is abandoned or vacated, such easement becomes extinguished, and such abutting owners, respectively, thereby acquire the right to possession as reversioners. Burbach v. Schweinler, supra; Racine v. Crotsenberg, 61 Wis. 485 . “ It is well settled in this state that the appropriation of a public highway for the purposes of a railroad is the imposition of an additional burden upon the abutting *569 owners, and hence is the taking of private property for public use, within the meaning of sec. 13, art. I, Const.” Buchner v. C., M. & N. W. R. Co. 60 Wis. 272 .

Such are the settled rules of law applicable to ordinary steam railways constructed, maintained, and operated in public streets for the carriage of passengers and freight.The question recurs whether the proposed street railway comes within the principles of law thus stated, or whether it will be a mere exercise of the easement acquired by the public when Milwaukee avenue was first opened to public use. In Hobart v. Milwaukee City R. Co. 27 Wis. 194 ; S. C. 9 Am. Rep. 461 , it was held that “The construction and operation of a horse railway in the public streets of a city, by authority from the city government, is not a new burden imposed upon the owners of the fee of the land, and they are not entitled to a compensation therefor, except where some private right of such an owner (as his free access to his own laud or buildings) has been materially impaired thereby.” The learned chief justice, who wrote the opinion of the court in that case, after showing that different courts and different judges of the same court have disagreed as to whether the establishment and running of a horse railroad in a public street was an imposition of an additional burden upon the land of the abutting owners, reaches the conclusion “that the laying down of the rails and running of the cars in the manner shown by this case is not the appropriation of the street to a new use, requiring compensation to be made therefor to the plaintiff, unless he has shown that he will suffer some private or peculiar injury by being deprived of that free access to his premises which otherwise he would continue to have and enjoy.” In that case the vehicles were drawn by horses, the same as ordinary carriages,- — -the only difference being in the size and shape of the vehicles, and the fact that in the one case they were confined to the fixed *570 iron track at grade, while in the other they were not; and yet, even in that case the conclusion of the court mentioned was manifestly so reached with some hesitation. The defendant in that case was incorporated under a special charter, and the law in force at the time authorized the municipality •to grant to such corporation “such use . . . of any streets within its limits for the purpose of laying single or double tracks and running cars thereon for the carriage of passengers only, to be propelled by animals or such other power as shall be agreed on” Secs. 1, 3, 4, ch. 313, Laws of 1860; sec. 1862, R. S. The same act authorized such corporation to extend its railways to any points within any town adjoining such municipality, and to lay and operate its railway upon the highways therein so as not to obstruct public travel thereon, upon procuring the written consent of a majority of the supervisors of such town. R. S. sec. 1863. In 1880 the powers of such street-railway corporations were enlarged and extended so as to authorize the same to build and operate their railways “ in any village or town, or to extend from any point m one village or town to, into, or through any other village or town; and for running of cars propelled by animals, for the carriage of either passengers or freight; . . . but not so as to obstruct the common public travel thereon.” Ch. 221, Laws of 1880; sec. 1863, S. &B. Ann. Stats. In 1881 the powers of such street-railway corporations were further enlarged and extended so as to authorize the same to run “ cars thereon for the carriage of freight and passengers, to be propelled by animals or such other power as shall be agreed on.” Laws of 1881, ch. 219; S. & R. Ann. Stats, sec. 1862. In 1S91 the act of 1880 (sec. 1863, S. & B. Ann. Stats.) was amended; and the powers of such corporations further enlarged and extended so that such railways should not be limited to “ streets,” and so that cars might be propelled thereon by “ other power ” as well as “ by animals,” “ for *571 the carriage of either passengers or freight.” Laws of 1891, .eh. 387.

As indicated in. the statement made, the part of the defendant’s proposed railway in question is to be a part of its connecting line of railway from the city of Kenosha to the city of Milwaukee; and, as expressed in the defendant’s charter, -it intends to use said railway, when constructed, for the carriage and transportation of passengers, merchandise, personal baggage, mail, and express matter, in cars and .trains propelled by locomotive engines and electricity and ■other power; but with no provision for condemning lands ■or acquiring the right of way, nor for joining and uniting with other railways in forming crossings, intersections, and ■connections, nor in adjusting differences in case of disagreement, as required by statute in the case of steam railways. S. & B. Ann. Stats, sec. 1828, subd. 6. Such a railway is not a street railway, within the ruling of the Hobart Case, nor as generally understood. Upon what principle of law can it be said that before the plaintiff can construct its railway across or upon a public street or highway at grade it must Riake compensation to, or acquire the consent of, the abutting landowner, and yet that the defendant can do the same thing without such compensation or consent? The mere difference in motive power would seem to be insufficient. Besides, there is certainly far more difference in the use of mere horse power, as in Hobart v. Milwaukee City R. Co., supra, and electric power, as in the case of the defendant, than there is in the case of electricity and steam. A mere street railway for carrying '•'■passengers only,” as the statute prescribed under which the Hobart Oase was decided, would greatly relieve the streets of a city or village from travel, and hence would, to that extent, facilitate travel on foot or by carriage. Such street railways, under the decision in that case, do not necessarily constitute an additional *572 servitucle or burden for which the abutting owners are entitled to compensation. The same would, to some extent, be true as to the suburbs of cities and villages. But the principle has no application to the country towns between Keno-sha and Milwaukee. The carriage of “passengers only” probably included such articles and effects as the passengers retained in their own personal custody. But the several amendments of the Revised Statutes, mentioned, purposely dropped out the word “ only,” and added the word “ freight,” and also added, the words “ other power,” as well as horsepower. In other words, the manifest purpose of the amendments was to authorize the construction and operation of commercial railways upon such streets and highways without, consent of, or compensation to, abutting owners. The charter of the defendant company contemplates the construction and operation of such commercial railway between Milwaukee and Kenosha,— which, of course, on the same theory, might be extended to Chicago. That such commercial rail-Avay upon public streets and highways, engaged in the carriage and transportation of merchandise, pei’sonal baggage, mail, and express matter, as well as passengers, would tend to obstruct and interfere with the ordinary uses of a street or highway, would seem to be quite manifest. Such use of streets and highways by such commercial railways constitutes, in our judgment, an additional servitude or burden upon the lands of abutting owners for which they are entitled to compensation. This certainly is in harmony with the decisions of this court. While there is much contrariety of opinion on the subject, yet the better rule seems to be that a commercial railroad constitutes an additional servitude or-burden for which abutting owners are entitled to compensation. 3 Elliott, Railroads, § 1087, and cases there cited; Shepardson v. M. & B. R. Co. 6 Wis. 605 ; Sherman v. M., L. S. & W. R. Co. 40 Wis. 645 ; Sweet v. Rechel, 159 U. S. 380 ; Lahr *573 v. Metropolitan Elevated R. Co. 104 N. Y. 268 ; Willamette Iron Works v. Oregon R. & W. Co. 26 Oreg. 224 ; S. C. 29 L. R. A. 88; State v. C., M. & St. P. R. Co. 36 Minn. 402 .

By the Court.— The order of the circuit court is reversed, .and the cause is remanded with direction to grant the temporary injunction, and for further proceedings according to law.