The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1907-07-11
Judge BeIden Decides That Chi.
cago & kenosha May Con.
denim Land Leased by Frost
The CASE MAY BE APPEALED
In His Decision Court Holds That a
Through Line Has First Right to
the Condemnation of Property
for Railway Purposes.

A. c. Frose and the Kenosha Elec-
trio Railway Company sustained their
hrst serious defeat in Kenosha this
morning, when Judge Belden filed his
decision in the matter of the petition
OF the Chicago, Kenosha and Milwau-
kee Electric Railway Company to con.
denim right of way through the
property now leased by the Kenosha
Electric Railway Company and used
by that company as car barn. The
Court gives the through line the right
to condemn the property and in we'll
written decisions outlines clearly the
rights of the through lines as COM
pared with those of local lines. 1t is
possible that the Frost Company will
appeal to the Supreme Court in the
case, but the decision of Judge Belden
seems to be decidedly well backed by
Supreme Court decisions, and it is be-
ginning to look as if the final victory
in the matter will be with the Chi
cago, Kenosha and Milwaukee line.
In his decision Judge Belden says in
part:
1T is well settled that property
held for public use is still subject to
the eminent domain power of the
state, with the exception that it can
not be taken to be used for the same
purpose in the same manner. If this
we're not SO, it is said by sBigelow, j.,
in Central Bridge Corporation VS..
Lowell, 4 Gray, 474, ''Great public
Improvements, rendered necessary by
the increasing wants of society in the
development of civilization and the
progress of the arts, might be pre-
vented by legislative grants which
we're wise and expedieDtg in their
time, but which the public necessities
have outgrown and rendered obso-
lete."
'The distinction between main,
trunk or interurban railroads, and
main lines for their uses, and local
street railways is manifest, and has
been recognized in this state in the
late case, Milwaukee Light, Heat and
Traction Company VS.. Milwaukee
Northern Railway Company, not yet
reported. The term railroad" is not
generic. The petitioner is CONNER
cial railroad and it seems to the Court
clear that it's use and it's necessities
are different and superior, in point OF
public service, to thatSof the respon-
dent Kenosha Electric Railway Com.
| ~ t1v nf
was also local street railway, il
could not condemn the parcel in ques.
ton; but the purposes of its organiza.
ton and the service which it is bound
to render to the public is materially
different from that rendered by the
respondent. Where mere change OF
ownership is sought, without change
IN purpose and use, the rule invoked
oy the respondent applies. It does
not follow because the uses of these
two companies are both public, that
they are, therefore, within the mean
ing of the rule invoked by respondent
necessarily the same. In this case
the purposes and uses ofa petitioner
are different and superior, to those of
the respondent and the Court is of the
opinion that the petitioner has the
right to condemn and acquire the
strip in question for the uses and pur-
poses stated in it's petition; and this
regardless of the quality of respon-
dents title to or interest in the prem
ises.
1T hardly seems necessary, in view
of the foregoing, to consider whether
the respondent may claim that it oc-
cupies the parcel in question under
such conditions and for such uses that
its rights could. IN any event, be said
to be superior to those of the petit
toner. The respondents terms and
reservations in the lease referred to,
relative to its buildings, may be re-
garded as significant. The general
principle doubtless is that priority is
acquired by that company which first
claims Completed location over the
property IN question. In this case
the petitioner has done all that the
statute requires to make a completed
locations; the respondent has done
nothing of the sort, occupies the
premises in question under a short
term lease, readily terminable, and,
SO far as appears took no steps to ac-
quire other rights or title until after
the petitioner had done all that the
statute requires to locate its line and
determine its rights, and filed it's petit
ton herein.
''The court is of the opinion that no
sufficient reason is shown why the
petition herein should not be granted,
but, on the contrary, that it does ap-
pear satisfactory that the. strict
rights of the petitioner, as shown by
its petition and the proof submitted,
require that the petition be granted.
A NEW ROCK EOR RAHATSTS