#### Younkin and others, Appellants, vs. Milwaukee Light, Heat & Traction Company, Respondents.

*January 14*

February *2, 1904.*

*Street railways:. Operation of interurban cars on city street: Additional servitude: Eminent domain: Equity: Injunction.*

1. A street railway incorporated under ch. 86, and secs. 1862, 1863, of ch. 87, Stats. 1898, operating under ordinances forbidding use for any other purpose than that of a passenger railway within the streets of the city, except carrying such personal, effects as are usually'carried hy passengers on street railways, and limiting the fare to he charged for each passenger, has-, the right to maintain its tracks and railway on the city streets,. for the purpose of doing a legitimate street-railway business, without making compensation to abutting lot owners.

2. Defendant operated interurban trains and cars over country highways between two cities, thence on its street-railway tracks. through one city over a street to its limits, and thence ovéh country highways to a point six or seven miles distant. *Held,*that the running of such interurban trains and cars over the-street-railway tracks was an additional burden upon the lands-of lot owners abutting on the streets so used.

3. Prior to the enactment of ch. 465, Laws of 1901, street railways-. had no right to condemn land in the streets of cities and villages. In an action commenced before that enactment it was, *held,*that the only adequate remedy of abutting lot owners, was to enjoin the unlawful casting of additional burdens on. *478their premises. Such decision is limited, however, to the conditions at the time the action was commenced.

4. In equity the mere fact that the complaint demands judgment for relief to which plaintiffs are not entitled is no ground for refusing the relief to which they are entitled.

Appeal from a judgment of tbe circuit court for Wau-'besba county; James J. Dice, Circuit Judge.

*Reversed.*

Tbis action was commenced July 26, 1900, by twenty-six. ■ abutting owners on Lincoln avenue, in tbe city of Waukesba, • to abate and remove from that street in front of tbeir respective lots tbe railway tracks, ties, poles, wires, and *other*erections of tbe defendant therein constituting tbe nuisance complained of, and to restrain tbe further obstruction or interference therewith. Tbe case was here on demurrer, and was reversed and remanded for further proceedings according to law. 112 Wis. 15, 23, 87 N. W. 861. Thereupon tbe complaint was amended in tbe particulars wherein it was held bad in that decision. Tbe defendant answered such amended complaint, and denied that it was a commercial railway to carry baggage or freight, and justified its maintenance of the railway tracks, etc., and its right to use the ••same and operate its cars thereon, under tbe statutes of this state therein cited and tbe ordinances of tbe city of Wau-kesba. A trial being bad, the court found as matters of fact, ■In effect: (1) That tbe plaintiffs were abutting owners as stated. (2) That Lincoln avenue was one of the principal public streets in the city, with desirable lots for residences thereon. (3) That at tbe time of tbe commencement of tbis action tbe defendant was, and since has been, incorporated under tbe articles of incorporation in evidence, and has all the rights, title, and interest conferred and granted by said •ordinances and amendments. (4) That July 27, 1897, tbe city, pursuant to sec. 1862, S. *&*E. Ann. Stats., and acts amendatory thereof, granted a franchise to tbe defendant and its successors and assigns incorporated and organized *479under eb. 86 (secs. 1771 to 1791m), of tbe statutes, and secs. 1862 and 1868 of cb. 87 of tbe statutes, and acts ■amendatory thereof and supplementary thereto, for tbe purpose of purchasing, acquiring, constructing, equipping, leasing, maintaining and operating by electricity or other power street railways for tbe transportation of passengers in tbe •city of Waukesha, and of purchasing, acquiring, taking, bold-ing, and operating real and personal property, rights, privileges, ordinances, and franchises upon certain streets therein, as found by the court. (5) That the defendant holds ■such rights, franchises, and property by assignment, as it is authorized to do. (6) That the defendant is the legal owner of such rights, franchises, and property, and had before and •ever since the commencement of this action operated such railway under such franchise on such streets; that the defendant constructed such double-track electric railway on Lincoln avenue, and operated the same as an electric street railway within the city of Waukesha, and never has and never intended to use said street car line or double track for the purpose of carrying freight or baggage; and this defendant has in all its acts upon said Lincoln avenue and other streets mentioned in said franchise, within the city of Wau-kesha, kept strictly within the authority conferred upon it by said franchise and acts amendatory thereof so far as its business was concerned. (7) That the defendant has not by itself or agents entered upon the lots of any of the plaintiffs other than going upon Lincoln avenue under said rights and franchises. (8) That in doing so it has complied with all the conditions and requirements of its franchises. (9) That under such authority the defendant has constructed, equipped, maintained, and operated a first-class •street railway line on Lincoln avenue, in the city of Wau-kesha, as authorized and required by its franchises and the ■statutes. (10) That the defendant constructed an electric line of railway from the city of Milwaukee to the city of *480Waukesha, and connected the same with its street car line in the city of Waukesha in 1898. That the defendant purchased a line of electric railway from the city of Waukesha to a j)oint on Pewauke© Lake known as “Waukesha Beach,”' about six miles in length, from another company, and the defendant connected such line with its said street railway in the city of Waukesha, and during the summer months has run and operated cars from the city of Milwaukee over and across said electric line to the city of Waukesha, and across, said city of Waukesha and over and upon said Lincoln avenue in the city of Waukesha to the western limits of the city, doing a street car business within that city, and then on the line so purchased to Waukesha Beach; that all of said lines are of the overhead trolley system throughout its entire length, with wires strung from poles, charged with a heavy current of electricity; that up to August 1, 1900, there was only a single track on Lincoln avenue, and that was located in the center of the street, and consisted of T rails laid upon ties imbedded in the street; that about August 1, 1900, it was removed, and a double track was laid on Lincoln avenue, in accordance with the ordinance and franchise granted by the city of Waukesha to the defendant; that doing so rendered the property of the plaintiffs in some instances less easy of access than before; that in some portions of the year cars and trains ran directly over and upon said line over and upon Lincoln avenue in the city of Waukesha without change of cars, once an hour, in accordance with the franchise granted by the city of Waukesha — except on Sunday during the summer months, when cars are frequently run every half hour; that the number of passengers so carried exclusively within the city of Waukesha is not large; that the cars that are so run over and upon Lincoln avenue in the city of Waukesha do a regular street car business within that city. (11) That the defendant constructed its single 'track on Lincoln avenue, and placed its poles, wires, etc., *481thereon, without objection from any of the plaintiffs; that the first objection was made when the defendant began constructing its double tracks in August, 1900; that no compensation has ever been paid to any of the plaintiffs for the construction of such tracks on Lincoln avenue. As conclusions of law the court found, in effect, that the defendant is entitled to have the plaintiffs’ complaint dismissed, and judgment for its costs and disbursements in this action, and ordered judgment accordingly. Efom the judgment so entered the plaintiffs bring this appeal.

*Tullar & Loclcney,*for the appellants.

For the respondents there was a brief by *Ryan, Merton*& *Newbury,*attorneys, and *George P. Miller,*of counsel, and a separate brief by *Miller, Noyes & Miller,*and oral argument by *Mr. P. Merton*and *Mr. Geo. P. Miller.*

Cassoday, C. Y.

1. It is conceded that the defendant was incorporated, created, and organized under and by virtue of ch. 86 and'secs. 1862 and‘1863 of ch. 87 of the Statutes of this state and the laws amendatory thereof and supplemental thereto, prior to the commencement of this action. It is also conceded that prior to that time, and pursuant to such statutes, the defendant obtained from the city of Wau-kesha, ordinances giving to it “the right to construct, maintain, and operate street railways” upon certain streets therein named in the city of Waukesha, including Lincoln avenue,, with single or double tracks. The ordinances required the defendant to construct and operate its railway line and tracks on the surface of the streets, and not to operate the same for-any other purpose than that of a passenger railway within the streets of the city of Waukesha, except that they were-thereby permitted to carry such personal effects as were usually -carried by passengers on street railways, and that the-rate of fare thereon should not exceed five cents for each passenger, except where cars are chartered at a special price or *482for a special purpose. Sucb line of railway and tracts in tbe city appear to have been constructed as so prescribed by tbe city. In view of sucb facts it is very obvious tbat under tbe decisions of tbis court tbe defendant had tbe right to maintain its tracks and railway on Lincoln avenue for tbe purpose of doing a legitimate street-railway business without making compensation to any of tbe plaintiffs as abutting lot owners. Thus it appears tbat tbe decisions of tbis court culminating in *La Crosse City R. Co. v. Higbee,*107 Wis. 389, 83 N. W. 701, 51 L. R. A. 923, are to tbe effect tbat sucb electric street railways, constructed and operated as so prescribed, are nothing more than an improved method of using tbe street to effect its original design. And so it was there held:

> *“A*railroad constructed on tbe grade of a street, and operated so as not to materially interfere with tbe common use thereof for public travel by ordinary modes, or with private rights of abutting landowners, and for tbe purpose of transporting persons from place to place on sucb street at their reasonable convenience, is not an additional burden on the fee thereof. A railroad satisfies tbe above essentials, regardless of tbe motive' power used, or bow it is applied, if it be strictly a street railroad for tbe carriage of passengers on tbe street, taking them on and discharging them at reasonable points, and it be so constructed and operated as not to materially interfere with the ordinary modes of using tbe street for public travel or with private rights.”

2. A very different question, however, is here presented, as appears from tbe facts stated. It is undisputed tbat the defendant was incorporated, created, and organized as stated, and before tbe commencement of tbis action owned and operated a street railway from tbe city of Milwaukee westerly through the country to tbe easterly limits of tbe city of Waukesha, where it enters Lincoln avenue, and runs thence in a westerly direction through tbe city of Waukesha, and thence through tbe country in a northwesterly direction for *483a distance of sis or.seven miles to Waukesha Beach, a summer resort on the shore of Pewaukee Lake. Under the repeated decisions of this court such street railroad upon the public highway between the cities of Milwaukee and Wau-kesha has been held to be an additional burden, which entitled the abutting landowners to compensation therefor. *Chicago & N. W. R. Co. v. Milwaukee R. & K. E. R. Co.*95 Wis. 561, 70 N. W. 678, 37 L. R. A. 856; *Zehren v. Milwaukee E. R. & L. Co.*99 Wis. 83, 74 N. W. 538, 41 L. R. A. 575. In this last case the question was very carefully -considered, and it was expressly held:

> “An electric railway for the carnage of passengers between cities, which is constructed and operated upon a country highway, is an additional burden upon such highway, .and its proprietors cannot, even with the permission of the town authorities, granted for the sole purpose of enabling them to do so, cut down the highway so as to seriously impair the rights of an abutting owner to access to his lot, without his consent, or the payment- of compensation to him.” See, also, *Krueger v. Wis. Tel Co.*106 Wis. 96, 103-107, 81 N. W. 1041; *Linden, L. Co. v. Milwaukee E. R. & L. Co.*107 Wis. 493, 511-513, 83 N. W. 851; *Allen v.*Clausen, 114 Wis. 244, 249, 90 N. W. 181.

Of course, the same is true as to the defendant’s line of railway from the city of Waukesha to Waukesha Beach. It is conceded that the rule stated is applicable to the whole line from the city of Milwaukee to Waukesha Beach, except within the limits of the city of Waukesha. The defendant claims the right to run its trains and cars from the city of Milwaukee directly through the city of Waukesha and to Waukesha Beach. In doing so it is conceded that, while such trains or cars are interurban, they do cast an additional burden on the lands of abutting owners, which entitles them to compensation; but it is claimed that the moment such trains or cars pass into the city of Waukesha they cease to cast any such additional burden upon the lands of such abut*484ting owner's. And yet sncb trains or cars may be loaded with-tbrongb passengers. Tlie only difference is that while in the city of Waukesha such trains or cars, in obedience to requirements, stop at street'crossings, whereas in the country they only stop when convenient, or at points remote from each other. Counsel for the defendant argues that as a train or cars with passengers from Milwaukee might, at the city limits of Waukesha, change from such interurban cars to-regular street cars, and then at the "westerly limits of the city again change into interurban cars, that, therefore, it- is-substantially the same as though the interurban train or cars should continue with its passengers directly through the city; especially as the ordinance expressly authorized the street railway to connect with the interurban railway. While such argument may be plausible, yet it is really begging the question. It might be argued on the same theory that a commercial railway passenger train, with the permission of the city, might be run over the street railway tracks without compensation to the abutting lot owners. We must hold that the running of such interurban trains and cars over the street railway tracks upon Lincoln avenue was an additional burden upon the lands of the plaintiffs as such abutting lot owners.

3. Counsel for the defendant contend that the question is-not properly before us on this appeal; that, if the running" of such through cars on Lincoln avenue was improper, then that it was merely an abuse of the defendant’s street railway franchise; and that, “if *the*plaintiffs have any remedy, it is to institute condemnation proceedings.” But it was held on the former appeal:

> “Prior to the enactment of ch. 465, Laws of 1901, street railway companies had no right to condemn land in the streets of cities or villages; and where a street railway was constructed without authority in such a street the abutting owners might resort to the ordinary actions for relief.”

*485*Younkin v. Milwaukee*L., *H. & T. Co.*112 Wis. 15, 19, 87 N. W. 861.

Tbe result is that the only adequate remedy the plaintiffs had at the time of the commencement of this action was to restrain the defendant from casting such additional burden upon their lands as such abutting lot owners; and such right of action was common to all of them. Id. The facts were in issue, and all appear in the record, and are undisputed. The mere fact that the plaintiffs have prayed for relief to which they are not entitled is no ground for refusing to them the relief to which they are entitled. This decision must be regarded as limited to the condition of things "at the time this action was commenced.

*By the Court.*— The judgment of the circuit court is reversed, and the cause is remanded, with directions to enter .judgment in favor of the plaintiffs and against the defendant as indicated in this opinion.