Abbott v. Milwaukee Light, Heat & Traction Co.

Siebecker, J.

The principal contention of appellant is that the only ground, if any, upon which respondent can recover is for damages she has suffered, as an abutting prop *637 erty owner, on account of the running of interurban tr'ains or-cars over the street railroad tracks placed on Lincoln avenue. As shown in the statement of facts, appellant has been and is-now operating an interurban street railroad, extending from the city of Milwaukee to and into the city of Waukesha over-the street in question, and by this proceeding it undertakes to condemn and permanently appropriate all the rights of property which entitle persons intei*ested in property along the-right of way to damages caused by the operation and maintenance of an interurban street railroad business on its double-track railroad upon this public highway. It is claimed that" in this proceeding no damages for the taking and appropriating of a portion of the street as a right of way for the location of its tracks should be allowed the property owners affected,, since the city has granted the right to defendant to lay such-tracks within the street-for conducting a city street railroad business, and because such occupation of the street by the tracks is not a servitude additional to those contemplated by-the original dedication or taking of the land for the purposes-of a public highway. This claim is not well founded. It fails to distinguish between the appropriation by a private-corporation of a part of a street for the purpose of conducting a transportation business, and the general uses of a highway “to accommodate the public travel, [and] to afford citizens and strangers an opportunity to pass and repass, on foot or in vehicles, with such movable property as they may have occasion to transport.” Carli v. Stillwater St. R. & T. Co. 28 Minn. 373, 376 , 10 N. W. 205 .

This court has held that the operation and maintenance of' street railroads upon the streets within the limits of a city, for the purposes of accommodating the public travel by aiding-in transporting persons from place to place on such streets, is a burden contemplated by the original taking of the lands for street purposes, and that the owner of the land occupied’ by the street is not entitled to damages additional to those- *638 awarded to him for the original taking of it for the purposes ■ of a public, highway. Hobart v. Milwaukee C. R. Co. 27 Wis. 194 ; La Crosse C. R. Co. v. Higbee, 107 Wis. 389, 399 , 83 N. W. 701 . This use of the streets is classed as one inci- • dent to the public easement and is not deemed to be an appropriation of any portion of the street or soil within its boundaries for any purposes other than those to which it is devoted 'by the public generally. It is also well recognized that the grant to a person or corporation of a right to occupy the land within a street for any public purpose, whereby it is devoted "to purposes other than those of a public highway, is an additional servitude upon the soil for which the owner is entitled •to compensation. Chicago & N. W. R. Co. v. M., R. & K. E. R. Co. 95 Wis. 561 , 70 N. W. 678 , and cases cited; Zehren v. Milwaukee E. R. & L. Co. 99 Wis. 83 , 74 N. W. 538 ; La Crosse C. R. Co. v. Higbee, supra. Within the scope of this principle it was held that defendant’s right to maintain and ■ operate an interurban street railroad business upon the street in question constituted a right different from the right of passage by the public, and that such grant gave it the exclu■sive privilege, conformably to its grant and the regulations prescribed by the municipality, of using the portion of the street necessary for the conduct of its business, and that for this it would be required to make compensation to the several abutting property owners. Younkin v. Milwaukee L., H. & T. Co. 120 Wis. 477 , 98 N. W. 215 . Since this use is in no way predicated on the public right to the use of the street, defendant can so occupy it under no other authority than the ■one granted to it as an agency for conducting a transportation business, in accordance with which it may condemn property to secure a right of way. In these respects its rights and liabilities are like those of a commercial railroad, and when ■ to conduct its interurban railroad business it appropriated the street in front of plaintiff’s property it was a taking of plaintiff’» private property for a public purpose, for which she is *639 entitled to compensation under the rules governing the exercise of this right by commercial railroads. The extent of ■such rights and liabilities is established in many decisions of this court, among which may be cited Ford v. C. & N. W. R. Co. 14 Wis. 609 ; Pomeroy v. M. & C. R. Co. 16 Wis. 640 ; Buchner v. C., M. & N. W. R. Co. 60 Wis. 264 , 19 N. W. 56 . In its legal effect the proceeding instituted by the ■defendant company is an assertion by it as an interurban street railroad of the rights granted by secs. 1862, 1863a, Stats. 1898, under which, pursuant to the privileges granted by the city of Waukesha to occupy the street in question, it may acquire the right of way for its road and thus, for the purpose of conducting its transportation business, obtain a perpetual interest in the real estate of the plaintiff. It is obvious that this- action of the defendant is not based on any rights or privileges which have been bestowed on it by the ■city for affording facilities to persons to pass and repass on the streets as a public highway, but that it is taking property under the power of eminent domain, for which it must indemnify plaintiff. This conclusion negatives the main contention of the defendant on this appeal.

Error is assigned .upon the admission of testimony bearing ■on the measure of damages, and on the giving of an instruction to the effect that the measure of damages was the difference between the market value of plaintiff’s abutting property just before the defendant commenced conducting its interurban business upon the street and its market value in September, 1904, when the award of damages was made by the •commissioners. The defendant commenced operating .this railroad in 1898. The true rule is as claimed, that the measure of damages is the difference, if any, at the time of the filing of the commissioners’ award, between the market value of the premises with the road located upon it and the market value at that time freed from the use and burden of the road. The erroneous statement of the rule by the court to the jury *640 and the admission of evidence of the value in 1898 did not, however, prejudice defendant under the circumstances shown,, for the reason that the market value of the property, as shown by the evidence covering the period prior to the filing of the award, was substantially the same as it would have been in September, 1904, without the burden of the railroad. Lyon v. Green Bay & M. R. Co. 42 Wis. 538 ; West v. Milwaukee, L. S. & W. R. Co. 56 Wis. 318 , 14 N. W. 292 ; Milwaukee & M. R. Co. v. Eble, 3 Pin. 334 .

It is also claimed that under the directions given the jury they probably included whatever damages plaintiff suffered' by reason of the operation of a city street railroad in this street. An examination of the instructions reveals that the court expressly and repeatedly instructed the jury that plaintiff was not entitled to any damages due to the conduct of such street railroad business. It must be. presumed that the jury followed the instructions of the court in this particular. We-do not consider the damages to be excessive, as claimed by the defendant. The evidence adduced abundantly supports the verdict.

A large number of instructions requested by defendant and covering a number of distinct propositions were refused/by the court. To these refusals a general exception was taken. Under such circumstances the exception does not avail to present questions for review. Lowe v. Ring, 123 Wis. 370 , 101 N. W. 698 . The exceptions taken to the instructions given and preserved and argued on this appeal are hereinbe-fore sufficiently covered in so far as they .require specific consideration. They have been examined, and we find no prejudicial error in the record.

By the Gourt. — Judgment affirmed.