Ullrich v. Kenosha County ( 1935 )

Nelson, J.

The petition which instituted these proceedings was signed by William M. Ullrich and Helena Ullrich. It was represented and shown therein that William M. Ull-rich and Helena Ullrich were the owners of certain real estate situated in Kenosha county, Wisconsin; that on or before March 27, 1931, the County Highway Committee of Kenosha county had determined the necessity of taking for highway purposes the real estate described therein; that on March 27, 1931, the said highway committee had made and signed an award of damages to the petitioners which award was approved by the State Highway Commission; that the petitioners were informed and verily believed that said award of said County Highway Committee was never filed with the clerk of Kenosha county; that thereafter the highway authorities took possession of the land described; that the petitioners desired to have the damages for the taking of the said real estate ascertained and determined. Other persons were by stipulation made parties to this proceeding. In the answer of the defendant it was admitted that the plaintiffs were the owners of the premises and the owners of liens thereon, but denied that the lands had been taken for highway purposes. It was alleged that the taking was for railroad purposes. It was further alleged that for some years prior to November 30, 1931, the real estate described in the plaintiffs’ petition, except as thereinafter stated, constituted a public highway and was known as State Trunk Highway No. 50; that the State Highway Commission of Wisconsin, by a resolution adopted on October 16, 1931, and amended on November 20, 1931, determined that, for the proper construction and improvement of said State Trunk Highway No. 50, at the place in question, it was necessary to make certain relocations, to secure additional rights of way, and that the said commission did relocate said portion of said State Trunk Highway No. 50 in accordance with a plat marked “Plat of Right-of-Way Required. State Aid Project No. 2079, Silver Lake Grade Separation, S. T. PI. No. 50, Kenosha County;” that the said relocation of said highway at said place included lands formerly used for a highway at said place, and in addition thereto included lands on each side of the highway as formerly located, which highway as relocated included the lands described in the petition, and resulted in a widening of the highway at that place; that said relocation was made pursuant to the provisions of sec. 83.08 of the statutes; that on September 27, 1931, the County Highway Committee of Ke-nosha County made an award for the lands taken and as described in the petition; that said award was made pursuant to sec. 83.08 of the statutes; that the land described in the petition included a portion of said State Trunk Highway No. 50 as relocated, where it crossed the right of way of the Minneapolis, St. Paul & Sault Ste. Marie Railway Company; that the construction and improvement of said highway at said place and the taking of said lands described in the petition was for the purpose of effecting a separation of the grade of said highway from the grade of the tracks of said railway company; that after said highway had been relocated and said award made said construction and improvement of said highway was so made as to effect a separation of the grades of said state trunk highway and the tracks of said railway company, and was accomplished by constructing an overhead crossing at said place; that said overhead crossing was constructed for the purpose of eliminating dangers to the public and of eliminating a source of anxiety and expense to said railway company; that said work was done and performed in the exercise of the police power of the state pursuant to the statutes, and that whatever land or property was taken or whatever rights or property were taken, was a taking for railroad purposes, and did not give the owners or any persons interested in or having a lien on the lands described in the petition any right to compensation from the defendants, or any of them, and that whatever right the plaintiffs or any of them may have to compensation is a right against said railway company and not against these defendants or any of them.

Eliminating all unnecessary allegations from the petition, it alleges that the petitioners (the plaintiffs here) owned and have an interest in certain real estate situated in Kenosha county; that before March 27, 1931, the County Highway Committee of Kenosha County determined the necessity of taking said lands for highway purposes; that the County Highway Committee signed an award of damages, which award was approved by the State Highway Commission, but which award was never filed with the county clerk of Keno-sha county; that thereafter the highway authorities took possession of the lands. The answer does not deny that the defendants took possession of the plaintiffs’ lands, but alleges that the taking of the plaintiffs’ lands was for railroad purposes. The defendants contend that since the relocation of the highway was for the purpose of eliminating a grade crossing and constructing an overhead crossing in its place, the taking of the plaintiffs’ lands was for railroad purposes, and that the plaintiffs must look to the railway company, not to the public, for compensation. They base their contention on four cases: Pabst Brewing Co. v. Milwaukee, 157 Wis. 158, 147 N. W. 46; Eisler v. Chicago, M. & St. P. R. Co. 163 Wis. 86, 157 N. W. 534; Chicago, M. & St. P. R. Co. v. Milwaukee, 170 Wis. 77, 174 N. W. 719; and Application of Kaiser, 171 Wis. 40, 174 N. W. 714, 176 N. W. 781. In our opinion, those cases involved situations quite unlike the present, and therefore do not rule the present controversy.

In the Pabst Case, supra, the plaintiff sought to recover certain damages which it asserted resulted from an illegal change in the grade of a street. The city contended that the acts complained of were committed wholly by the railway company in complying with an ordinance of the city. It was held that the street was cut down for railway purposes. Although the court did not specifically mention a certain provision of the charter of the city of Milwaukee (Laws of 1874, ch. 184, subch. IV, sec. 3, subsec. 48), it was without doubt considered, as it was then in force and effect. That provision conferred upon the city council the power “to require railroad companies to construct and maintain at their own expense such bridges, viaducts, tunnels, or other conveniences, at public railroad crossings, as the common council may deem necessary.” It was, no doubt, pursuant to that charter provision that the ordinance was enacted, which compelled the railway company to elevate its tracks. See opinion of Owen, J., concurring in the result reached in Chicago, M. & St. P. R. Co. v. Milwaukee, supra, p. 88; Application of Kaiser, supra, p. 43.

The Eisler Case, supra, was a condemnation proceeding, instituted by the owner of real estate for the purpose of having determined the compensation to which he was entitled by reason of the taking of his land by the railroad company in raising its tracks across a certain aventte. In 1906, the railway company had been compelled by the city of Milwaukee to elevate -its tracks above the avenue and to lower the latter, which necessitated the lowering of the grade in front of plaintiff’s land. It was again held that such taking was for a railway purpose. No reference was made in the opinion to the charter provision, supra, or to any specific ordinance. The court contented itself with the statement:

“In. 1906, the railway company was compelled by the city of Milwaukee to elevate its tracks above the avenue and to lower the latter so that it became a subway under the track. In making the subway it became necessary to lower the established grade of the avenue.”

In Chicago, M. & St. P. R. Co. v. Milwaukee, supra, the railway company sought to recover from the city damages asserted to have resulted from the raising of the grade of a street in front of its warehouse. In that case there was involved an order of the railroad commission made pursuant to the provisions of sec. 1797 — \2e, Stats. 1917, which order required the railway company to separate the railroad and street grades on certain streets in the city of Milwaukee. It was held by a divided court, following the decisions in the Pabst and Eisler Cases, that the raising or lowering of the surface of a street occasioned by the separation of railroad and street grades is, in legal effect, not a change of grade by the municipality, but a taking of land by the railway company for railway purposes, and that the city of Milwaukee had no power under its charter to change the grade of a street in order to enable a railway company to maintain its tracks in or across the street, for the reason that this was a taking of land for railway purposes. In speaking of the proceedings in the Pabst and Eisler Cases, it was said that they “were begun and brought to completion under the provisions of the Milwaukee charter.” The court, after holding that, in legal effect, the proceedings taken by the city under its charter provisions and the proceedings under sec. 1797 — 12e, Stats. 1917, were essentially the same, said:

“If the change of grade is a railroad taking in one case it is necessarily so in the other. It is significant also to note that the legislature in passing ch. 540, Laws of 1909 (secs. 1797 — 12e, 1797 — 12/, Stats. 1917), provided that railroad companies might take land by condemnation for the purposes of the law, thus indicating- that the legislative idea as to the character of the act agreed with the idea of the court as expressed in the Pabst B. Co. Case.’1