#### Marsh, Appellant, vs. Milwaukee Light, Heat & Traction Company, Respondent.

*January 8*

January *28, 1908.*

*Eminent domain: Nature and, extent of right taicen "by interurhan railway in city street: Existing street railway franchise: Statutes: Construction: Instructions to jury: Prejudicial error: Damages: Rule: Measure.*

1. A railroad or other public or quasi-public corporation in the condemnation of land is not required in every case to assert its full power of condemnation given it by statute, but may lessen or limit within a reasonable degree the estate or right in the land taken by the condemnation.

2. Sec. 1863a, Stats. (1898), authorizes electric railroad corporations to exercise the power of eminent domain and in the same manner as ordinary commercial railways, but excepts from this authority the condemnation of rights in city streets. By amendment (ch. 306, Laws of 1899; eh. 466, Laws of 1901; and ch. 497, Laws of 1905) the restriction as to streets was so modified that, where the use of such street had been first duly granted to the electric railway company by a franchise duly passed by the common council of the city, the power of condemnation was not restricted. Defendant, an electric interurhan railway, after it had, for several years, carried on its interurhan business over a street x'ailway system owned by it, filed its petition for the condemnation of so much of the right, title, and interest of the abutting owners as was sufficient for the construction, maintenance, and operation of its interurhan system, the averments of the petition being stated in the opinion. *Held:*

(1) The averments of the petition relieved the court from determining whether, under such statutes, the interurhan railway corporation had power to condemn a mere right to run electric interurhan cars over the tracks of an ordinary street railway and have the damages of the abutting owners assessed accordingly.

(2) The averments of the petition, together with the power given by such statutes, amply showed that the interurhan railway corporation had by such petition condemned and taken, subject to the appraisal of damages and the special provisions of sec. 1836, Stats. (1898) — recognizing that the exclusive use and possession of a highway is not acquired by condemnation, but that other public uses continue unimpaired, or only im*385paired so far as absolutely necessary, — a right of way in the street for its roadbed and appliances, not during the life of the street railway franchise, but permanently.

(3) The defendant railway haying in its petition recognized the franchise under which the street railway was operated on the same roadbed and with the same appliances with which it was operating its interurban traffic and made it one of the bases of such petition, acquired by the condemnation in question a right to construct and maintain its interurban railway, subject to the duty to continue the operation of street railway cars during the life of such franchise.

S. In such case it was error to limit plaintiffs damages to those sustained by the mere maintenance and operation of interurban railway cars ove1’ street railway tracks in front of her premises.

4. In such case it was error for the court to instruct the jury as stated in the opinion and to refuse requested instructions, also stated in the opinion.

5. In a proceeding to condemn so much of the right, title, and interest in a city street of the abutting owners as is sufficient for the construction, maintenance, and operation of an interurban railway, the street already being occupied by street railway tracks and appliances in use for both urban and interurban traffic, it is *held*that the damages should be estimated with reference to conditions lawfully existing at the time of filing the award of the commissioners, including the existence and operation of the street railway in the street in front of the plaintiff’s premises, and with reference to the change made by the taking when completed, including the substitution of an interurban railway roadbed, track, and appliances permanently upon the street, but with the duty on the part of the railway company to continue the street railway service; such damages to be measured by the difference, if any, between the market value of the property in its former condition and its market value with the condemnation completed.

Appeal from a judgment of the circuit court for Wau-kesha county: James J. Dsce, Circuit Judge.

*Reversed.*

The appeal is from a judgment rendered upon a verdict for the appellant upon appeal to the circuit court from the award of commissioners in a condemnation proceeding. March 3, 1904, the respondent filed its petition in the circuit court for Waukesha county seeking “to condemn and permanently appropriate all the rights of property which *386would, entitle tbe owners and persons interested in tbe lots fronting and abutting upon said Lincoln avenue (or street) ... to damages by reason of tbe construction, maintenance, and operation on said Lincoln avenue (or street) of tbe double-track railroad authorized by your petitioner’s said articles of incorporation and said franchise, and as tbe same has been heretofore constructed and operated.” Elsewhere in said petition it appears that tbe whole street, sixty feet in width, is sought to be taken for the construction, maintenance, and operation thereon of petitioner’s double-trg,ck electric railway “authorized by its' articles of incorporation.” The usual order was made on this petition appointing commissioners. September 19, 1904, the commissioners filed their award to the appellant of $265 damages, and from this award both parties appealed to the circuit court, where the appellant had a verdict for $250. Costs were taxed in favor of the respondent and set off against these damages, and from the judgment thus arrived at this appeal to this court is taken by the lotowner.

The respondent was incorporated in the latter part of the year 1896 or in the early part of 1897 for the business or purpose of purchasing or otherwise acquiring, constructing, equipping, leasing, maintaining, and operating by electricity or other power street railways for the transportation of passengers, mail, express, merchandise, and other freight in the city and county of Milwaukee and elsewhere in said state, and of purchasing or otherwise acquiring, taking, holding, and operating real and personal property rights, privileges, ordinances, and franchises, and any enterprise suitable for and in furtherance of the business or purposes of the corporation, and for the purpose of acquiring the real and personal property rights, privileges, ordinances, and franchises of any individual or individuals, or of any street railway companies and electric power, light, or heat companies, foreign or domestic, now or hereafter existing,” etc. July 27, 1897, the common council of the city of Waukesha, under *387and pursuant to tbe power delegated to it by sec. 1862, Stats. (1898), granted by ordinance tbe use of certain streets of tbe city of Waukesba to tbe Waukesba Electric Railway Company, its successors and assigns, for tbe term of fifty years and no longer. Tbis ordinance was wbat is commonly known as a street railway franchise, and contained tbe usual provisions found in sucb franchise ordinances; and sec. 9 thereof was as follows:

“The said company, its successors or assigns, shall not operate its lines and railway for any other purpose than that of a passenger railway within tbe streets of tbe city of Wau-kesba, but said company shall be permitted to carry sucb personal effects as are usually carried by passengers on street railways.”

Tbe ordinance was from time to time amended. Tbe last amendment offered in evidence bears date July 11, 1900, and authorizes the laying of a double track for an electric street railway and tbe occupation of Lincoln avenue in tbe city of Waukesba. Tbis franchise is referred to in tbe petition for condemnation, in tbe award of commissioners, and was offered in evidence by tbe respondent, and is still in force.

Eor tbe appellant there was a brief by *Tullar & Lockney,*and oral argument by *D. 8. Trillar*and *Henry Lockney.*

Eor tbe respondent there was a brief by *Ryan, Merton & Newbury,*attorneys, and *Citarice M. Rosecrantz,*of counsel, and oral argument by *T. E. Ryan.*

TimxiN, J.

Tbe appellant assigns error because tbe trial court refused to instruct tbe jury as requested by her counsel and in giving certain instructions hereinafter noted. Some of these requests were properly refused, but among tbe instructions requested were tbe following:

> “Said plaintiff is entitled in tbis action to recover damages, if any there be, for tbe taking and appropriating by tbe defendant company of a portion of said Lincoln avenue as a *388right of way for the location of its tracks used in operating its said interurban railway.”

> “Tbe legal effect of this proceeding by tbe defendant company is tbe acquisition by said company of a right of way for its interurban street railroad pursuant to tbe privileges granted by the city of Waukesha, and tbe acquiring by said defendant company for tbe purpose of conducting its transportation business of a perpetual interest in tire real estate of tbe plaintiff. This action of tbe defendant is not based on any rights or privileges which have been bestowed on it by tbe said city for affording facilities to persons to pass and repass on tbe streets as a public highway; but it is taking property under the power of *eminent*domain, for which it must indemnify plaintiff.”

After refusing the foregoing requests the circuit judge brought this question to a sharp issue by instructing the jury as follows:

> “It is undisputed that the defendant company is the owner of the franchises granted by the said city of Waukesha for the construction and operation of a street railway in said city and that the same are now in force and were in force at the time it laid its single and double tracks in front of and along the said described premises on said Lincoln avenue, and that such franchises authorize said company to layjsuch tracks on said Lincoln avenue, a public street of said city, and to operate on said tracks electric cars for street railway purposes; and the plaintiff is not entitled in this action to any damages for the laying of such tracks in front of his said property, or for the placing of poles and wires for the operation of a street railway line for the operation of electric cars for street railway purposes thereon, or for the operating of street railway cars thereon. And the plaintiff is only entitled to recover in this action for such damages as any of you shall find from the evidence he has sustained by reason of the defendant company maintaining and operating interurban railway cars over and upon said tracks in front of and along the said premises of the plaintiff over and above any damages which you may find from the evidence resulted to said premises from the construction and operation of such railway for *389street railway purposes, if yon find from tlie evidence the railway in front of said premises was a street railway operated as such before it was operated as an interurban railway, or was a street railway operated as such in connection with the operating of said railway as an interurban railway, in front of said premises on said Lincoln avenue.”

The questions arising upon the refusal of said instructions and upon the giving of said charge above quoted are preserved by sufficient exceptions. Waiving criticism on account of verbal inaccuracies, there is presented by the foregoing exceptions the question of what estate or interest in the highway is sought to be acquired and will be acquired by the condemnation proceedings in question. Is it a right to maintain in perpetuity interurban railway tracks, poles, and wires in this street, or is it a mere right to operate interurban railway cars upon tracks, poles, and wires which will remain street railway tracks, poles, and wires notwithstanding such operation for the next forty years, or for the unexpired portion of the fifty-year term of the street railway franchise ? If the latter, will a new condemnation proceeding be necessary at the expiration of the street railway franchise? If the former, will the street railway franchise be taken and extinguished by this condemnation ? If the street railway franchise be taken and extinguished by this condemnation proceeding, must 'the abutting landowners be compensated for this deprivation of street railway facilities ?

Consulting sec. 1863®, Stats. (1898), for the purpose of ascertaining the scope of this condemnation proceeding by an electric railroad corporation, we find the corporation authorized to acquire by condemnation such real estate and other property as may be necessary for the construction,, maintenance, and operation of its railroad' and of the stations, depot grounds, and other accommodations reasonably necessary to accomplish the objects of its incorporation. All the provisions of the statutes relating to the exercise of em*390inent domain by railroad companies are made to apply to electric railroad corporations, but this power did not extend to the condemnation of any rights in any street. This act was amended by ch. 306, Laws of 1899, ch. 465, Laws of 1901, and ch. 497, Laws of 1905. By such amendments the restriction above noted with reference to streets was so* modified that, where the use of such street had been first duly granted to the electric railway company by a franchise duly passed by the common council of the city, the power to condemn was not restricted. The delegation of the power of eminent domain by the state to the electric railway corporation was also modified so as to read as follows:

> “Any street or electric railway corporation shall have the power to lay out its right of way not exceeding one hundred feet in width and acquire the same by condemnation and to construct its railway thereon.”

Also:

> “Any such street or electric railway corporation may acquire ... by condemnation and may hold or use such real estate or other real or personal property as may be necessary for the construction, maintenance and operation of its railroad and of the stations, depot grounds and other accommodations reasonably necessary to accomplish the objects of incorporation; and when reasonably necessary may take and acquire by condemnation or otherwise the right to run its cars over any bridge owned by any city of the second, third and fourth classes, towns and villages, and the approaches thereto on the rails of any other street or electric railway which it may meet, join, intersect or cross.”

It is also provided that

> “wherever such corporation has constructed its railway on any street or highway under a franchise granted to it by any town or village board or city council, such corporation shall not during the term of such franchise abandon or discontinue any part of such railway on a public street or highway within any town, village or city without the consent of the proper town or village board or city council.” ■

*391Tbe petition for condemnation in tbe case at bar, by means of wbicb tbe respondent exercised its delegated power of eminent domain, states, among other things, that tbe respondent has in good faith already constructed its railroad over Lincoln avenue, so that one of its side-tracks is south of tbe center line of that street, and it has erected and now maintains poles, wires, and feeders and other electrical equipment used by it in tbe operation of its railroad, and that it requires for tbe purpose of constructing and operating its railroad so much of tbe right, title, and interest of tbe abutting owners on Lincoln avenue as is sufficient for tbe construction, maintenance, and operation thereon of tbe double-track electric railway authorized by respondent’s articles of incorporation, and so much as is sufficient for tbe construction and maintenance of tbe necessary electrical equipment for tbe conduct of electrical power, including poles, wires, cables, feeders, and fixtures, and including tbe right to send and convey thereby currents of electricity from tbe power bouse of respondent to points beyond tbe city of Waukesha. These averments are industriously repeated in tbe petition. They relieve us from tbe necessity of determining whether, under tbe statutes above referred to, tbe respondent has power to condemn a mere right to run electric interurban cars over tbe.tracks of an ordinary street railway and have tbe damages of abutting lotowners assessed accordingly, because here manifestly tbe respondent is not attempting any’such thing. Tbe averments of tbe petition, together with tbe power given respondent by tbe statute, amply show that tbe respondent has by such petition condemned and taken, subject to appraisal of damages by tbe commissioners and subject to tbe limitations hereinafter stated, a right of way in Lincoln avenue for its roadbed, tracks, poles, and wires, not during tbe life of tbe street railway franchise, but permanently. But a railroad or other public or gmsi-public corporation in tbe condemnation of land is not required in *392every case to assert its full power of condemnation given it by statute, but may lessen or limit witbin a reasonable degree tbe estate or right in tbe land taken by condemnation. *Jones v. Erie &*W. *V. R. Co.*169 Pa. St. 333, 32 Atl. 535; *Jones v. Erie & W. V. R. Co.*144 Pa. St. 629, 23 Atl. 251.

Tbe general railroad condemnation statutes authorizing tbe placing of tracks in a public highway have been construed to only authorize such taking as is not inconsistent with the existence of lawful public uses of the highway, at least where the taking of a greater estate or interest or of *exclusive*possession was not absolutely necessary to the construction of the railroad. *Bussian v. M., L. S. & W. R. Co. 56*Wis. 325, 14 N. W. 452. The special provisions of sec. 1836, Stats. (1898), relating to ordinary commercial railroads and the construction of the same upon highways, recognize that the exclusive use and possession of the highway is not acquired by condemnation, but that other lawful public uses continue unimpaired, or only impaired so far as absolutely necessary. These provisions of the general condemnation statutes apply by direct reference to condemnation of rights of way in highways by electric interurban railways. In addition to this the respondent, having recognized the franchise ordinance of July 27, 1897, in its petition for condemnation and made it one of the bases of such petition, must be held to have acquired by the condemnation in question a right to construct and maintain interurban railway tracks, roadbed, poles, and wires on Lincoln avenue, subject to the continuance of all the duties imposed by said ordinance, including the duty to continue the operation of street railway cars at the times and upon the terms therein specified. But having exercised its power of eminent domain to take for the purpose of constructing and maintaining its roadbed, tracks, poles, and appliances in the street as an electric interurban railway, the circuit court was in error in limiting the plaintiffs damages to those sustained by the *393mere maintenance and operation of interurban railway cars over street railway tracks in front of the plaintiff’s premises. The jury should have been instructed, as requested, that the plaintiff was entitled to. recover damages, if any there be, for the taking and appropriation by the respondent of said Lincoln avenue as a right of way for the location of its tracks and appliances used in operating its interurban railway. The jury should have been further instructed, as requested, that the legal effect of the condemnation proceeding was the acquisition by the respondent of a right of way for its interurban street railway pursuant to the privileges granted by the city of Waukesha, and the acquisition by the respondent for the purpose of conducting its transportation business of a perpetual interest in the real estate of the plaintiff.

The plaintiff’s damages must, of course, be estimated with reference to conditions lawfully existing at the time of filing the award of commissioners, including the existence and operation of a street railway on the street in front of plaintiff’s premises, and with reference to the changes made by the taking when completed, including the substitution of an interurban railway roadbed, track, and appliances permanently upon the street, but with the duty on the part of the respondent to continue the street railway service. The damages will be measured by the difference, if any, between the market value of the property in its former condition and its market value with the condemnation to the extent herein described completed. *Chapman v. O. & M. R. R. Co.*33 Wis. 629; *Driver v.*W. *U. R. Co.*32 Wis. 569 ; *Esch v. C., M. & St. P. R. Co.*72 Wis. 229, 39 N. W. 129; *Alexian Bros. v. Oshkosh,*95 Wis. 221, 70 N. W. 162; *Carl v. S. & F. duL. R. Co.*46 Wis. 625, 1 N. W. 295; *Milwaukee & M. R. Co. v. Eble,*3 Pin. 334; *Hutchinson v. C. & N. W. R. Co.*37 Wis. 582; *S. C.*41 Wis. 541.

With the novel features of the situation disposed of, by *394considering tbe talcing to bave been completed at tbe time the commissioners filed tbeir award, and considering as conditions lawfully existing prior to that time the street railway tracks and appliances and operation, excluding the unlawful operation of interurban cars, and treating as new conditions, brought, about tbe taking, tbe maintenance in perpetuity upon tbe street of interurban tracks, appliances, and tbe operation of an interurban railway, subject to tbe duty to continue tbe street railway service during tbe unexpired term of tbe said franchise, there can be little difficulty in arriving at tbe true measure of compensation under rules of law well settled in this state.

*By the Court.*— The judgment of tbe circuit court is reversed, and tbe cause remanded for a new trial.