#### Milwaukee Light, Heat *&*Traction Company, Respondent, vs. Burlington Electric Light *&*Power Company, Appellant.

*March 16*

April *5, 1910.*

*Electric railways: Condemnation of land: Franchise to use streets: Pleading: Appeal: Presumptions: Necessity of talcing: Rights*of *abutting owners in streets: Conditions precedent: Jurisdiction: 'Waiver of right to maintain appeal.*

1. Where the petition in proceedings to condemn land for an electric railway states that “reference is hereby made” to a certain franchise granted by a city “to the same effect as though a certified copy were hereto annexed and made part hereof,” and the record contains a certified copy of a franchise which both parties treated as the one referred to, the supreme court may, on appeal, ignore the informality in the pleading and consider the case as if the franchise were made a part of the petition.

2. Where a franchise granting the use of a street to an electric railway company required only that the track approximate the center of the street as near as practicable, with exception in favor of switches, turnouts, or side tracks which might be controlled by certain city officials, a construction of the road might be approved which would render reasonably necessary the taking of land abutting on the street; and on appeal from an order of the circuit court declaring the necessity of such taking, it will be presumed, in the absence of any bill of exceptions, that approval of such a construction was shown to the satisfaction of the court.

3. In proceedings to condemn land for an electric railway, failure of the petition to show the ability of the company to reach that particular point in its road does not render the petition insufficient.

4. A franchise granting the use of a city street is a condition precedent to the right of an electric railway company to condemn the rights of abutting owners in such street, and to the jurisdiction of the court to grant such condemnation.

6. A franchise granting merely the right to cross a street within the limits of another street cannot be deemed a permission to occupy any part of the first-mentioned street not within the crossing.

*4378. The fact that in proceedings to condemn land for a railway the owner joined in the litigation before the commissioners under an order declaring the necessity of the taking and appointing such commissioners, and has appealed from their award, does not prevent his maintaining an appeal from a portion of such order which was in excess of the court’s jurisdiction over the subject matter.

Appeal from an order of tbe circuit court for Racine county: E. B. BeldeN, Circuit Judge.

*Modified and affirmed.*

Tbe plaintiff, having obtained tbe necessary preliminary authorization from tbe Railroad Commission for tbe construction of a road passing through tbe city of Burlington, filed its petition, alleging tbe survey and staking out of its road, the necessity of running its line upon certain streets and highways in said city, entitling persons named in tbe petition to damages for tbe injury; also tbe necessity for taking certain sundry parcels of land, including a triangular piece of a certain lot 8 in block 10, lying in tbe southeast corner of said lot, and extending seventeen feet on tbe east line and thirty-two feet on tbe south line, according to a map attached. The petition also alleged that tbe city of Burlington bad granted a franchise to use certain streets, which franchise was not quoted in, or by copy annexed to, the petition, but that document referred to the franchise in tbe following words: “To which reference is hereby made, to the same effect as though a certified copy were hereto annexed and made part hereof.” There is contained in the record a certified copy of a franchise which both parties treat as the one referred to in the petition.

It appears that- the appellant owns lots 6, 7, and 8 in block 10, which lie at the northwest intersection of Fox street running east and west and Second' street running north and south. The franchise authorized respondent to enter Fox street east of Second street and to run along Fox street past the appellant’s said premises, crossing Second street within *438the limits of Pox street. The surveyed line, according to the map attached to the petition, ran diagonally across private property to the east line of Second street, entering that street about twenty feet north of Pox street and running diagonally across it to the southeast comer of appellant’s land in

block 10, tbence diagonally southwestward along Pox street The petition contained prayer for condemnation of the rights of appellant within the streets traversed by the surveyed line, also of the said triangular parcel in lot 8. The application was opposed by the respondent, and after trial was granted and the usual order made on April 3, 1909, declaring the necessity of said lands for plaintiff’s purposes and appointing commissioners, from which order defendant took an appeal May 8, 1909. Those commissioners made an award to *439the defendant, from which it appealed May 8, 1909. The disposition of the appeal in the circuit court is not disclosed by the record.

Eor the appellant there was a brief signed by *George*W. Waller, attorney, and *John B.*Simmons, of counsel, and oral argument by *Mr. Waller.*

Eor the respondent there was a brief by *Louis U.*Bohr, attorney, and *Clarice M.*Boseeraniz, of counsel, and oral argument by *Mr. Boseeraniz.*

Dodge, J.

The appeal from this order can raise no question except the sufficiency of the petition to support it. There is no bill of exceptions, and therefore a necessary presumption arises that all facts which might have been proved under the petition have been so proved as to support the order. Some doubt is entertained whether we ought to consider the copy of the franchise in the record, instead of presuming that under this petition was introduced in evidence a franchise justifying the order entered. We have concluded, however, by reason of the peculiar phrasing of the petition quoted in the statement of facts substantially consenting that a franchise existing on the public records of the city might be referred to with the same effect as if set forth by copy, that we may ignore the informality of the pleading and consider the case on appeal as if the franchise which we find in the record had been so attached. No defects in the petition are suggested to defeat jurisdiction of the court, except that it does not show a franchise from the city council of Burlington to use any part of Second street north of Eox street nor to run along Eox street upon the surveyed line. By virtue of sec. 1863a, Stats. (Supp. 1906), street or electric railway corporations are given all the rights of condemnation of private property conferred upon commercial railway corporations by the statutes (sec. 1846, Stats. 1898), with some modifications not here material This petition contains, as we *440hare said, all the elements essential under see. 1846 to give the court jurisdiction to appoint commissioners for such condemnation of all private property required. *Winnebago F. Mfg. Co. v. Wis. M. R. Co.*81 Wis. 389, 51 N. W. 576; *In re Milwaukee Southern R. Co.*124 Wis. 490, 102 N. W. 401. Whether or not the private property of the appellant authorized to be condemned by the order is required for the purposes of the railroad is a question of fact (sec. 1847, Stats. 1898; *Chicago, M. & St. P. R. Co. v.*Richardson, 86 Wis. 154, 56 N. W. 741; Chicago, *St. P., M. & O. R. Co. v. Bayfield Co.*87 Wis. 188, 194, 58 N. W. 245), which it must be presumed the court has resolved upon sufficient evidence. The argument of the appellant is that the franchise did not prescribe such a course for the railroad as that its land taken could be necessary. This is by no means clear, for even if the railroad ran according to the course indicated by the franchise, conditions are conceivable such as to make this triangular piece of land necessary to safe and easy construction and operation of the railroad, and it is all within the 100 feet of right of way authorized by sec. 1863a, Stats. (Supp. 1906), even upon the most limited construction of the franchise, namely, that of a single track in the center of Eox street. However, the franchise is not so limited. It only requires that the track approximate the center as near as practicable, and with exception in favor of switches, turnouts, or side tracks, which may be controlled by certain city officials. If any construction of the road could be approved such as to render this triangular piece of appellant’s lot reasonably necessary, presumably such approval was proved to the satisfaction of the trial court. No failure of the petition to show the ability of the company to reach this particular point in its road is fatal to the petition. *In re Milwaukee Southern R. Co.*124 Wis. 490, 498, 102 N. W. 401. For these reasons we cannot hold that any error was committed in ordering condemnation of the portion of appellant’s premises outside the streets.

*441When we approach that portion of the order which authorizes the condemnation of the appellant’s rights in that part of Second street north of Eos street we are confronted, however, with a different situation. The power of the railway to condemn such rights within a street or other public place is by sec. 1863a conditioned upon the existence of a franchise granting the use of such street. This is a condition precedent, and goes to the very jurisdiction both of the corporation to seek condemnation of streets and of the court to grant it. *Beloit, D. L. & J. R. Co. v. Macloon,*136 Wis. 218, 116 N. W. 897. We cannot, even by the most liberal construction of a franchise authorizing the mere crossing of Second street within the limits of Eox street, deem it a permission to occupy some other part of Second street not within the crossing. We are convinced that the respondent failed to show the existence of this condition precedent, and that the portion of the order relating to Second street north of Eox street in front of the appellant’s premises is not only erroneous, but beyond any jurisdiction aroused in the circuit court by this petition.

Respondent’s contention that the appellant cannot maintain an appeal from this order after he has joined in the litigation before the commissioners under it and has appealed from their award in an effort to increase it cannot be sustained with reference to that portion of the order which is held to be in excess of the court’s jurisdiction over the subject matter. *Winnebago F. Mfg. Co. v. Wis. M. R. Co.*81 Wis. 389, 51 N. W. 576.

*By the Court.*— The order appealed from is modified by striking out all portions thereof relating to that part of Second street in the city of Burlington lying north of the north line of Fox street, and as so modified is affirmed. Appellant to recover costs in this court.