Sixmile Creek Associates, Inc. v. Chicago & North Western Transportation Co.

504 N.W.2d 348, 178 Wis. 2d 237, 1993 Wisc. App. LEXIS 801

• Court: Court of Appeals of Wisconsin
• Decided: July 1, 1993
• Docket: No. 93-0127
• Status: Published

Opinions

EICH, C.J.

The Chicago and North Western Transportation Company appeals from a judgment and absolute writ of mandamus ordering it to construct and maintain three at-grade "farm crossings" on its railroad right-of-way and track running through land on which Sixmile Creek Associates, Inc., plans to construct a golf course.

The issue is whether, given the nature of the property and the intended use of the proposed crossings, they qualify as "farm crossings" within the meaning of sec. 192.33(1), Stats., which requires railroads to "erect and maintain . . . suitable and convenient farm crossings for the use of the occupants of [adjoining] lands ... ." We hold that they do not and reverse the judgment.

Sixmile was incorporated for the purpose of developing a 428-lot residential subdivision near the Village of Waunakee in Dane County. Included in the project is a 155-acre golf course over which C&NW owns and operates a single-track railroad right-of-way. An average of two eighty- to one hundred-car trains operates over the track each day at a maximum speed of thirty miles per hour.

The proposed golf course will be open to the public, with a limited number of private memberships. During the three and one-half month "peak" golf season, approximately 200 persons will be playing the eighteen-hole course daily, with approximately 100 persons playing daily during an equally long "non-peak" season. In all, there will be over 85,000 crossings of the C&NW track by golfers each year, in addition to an unknown number of crossings by course maintenance employees.

When C&NW declined Sixmile's request that it construct the three crossings on the course, Sixmile brought this mandamus action under sec. 192.33(1), Stats., to compel it to do so. After taking evidence, the trial court concluded that the proposed crossings were "farm crossings" within the meaning of the statute and ordered the railroad to build them. Specifically, the court ordered C&NW to construct and maintain the portions of the crossings within the railroad right-of-way and required Sixmile to build and maintain the approaches and to pay "[t]he entire cost of installation of the . . . crossings." The court also directed that Sixmile install a variety of warning signs and devices at the crossings and elsewhere along the track and adopt a series of rules warning golfers of the dangers of the crossings. The railroad appeals.

"Farm crossings" are distinguished from highway crossings both in their use and the extent of required crossing protections. Manitowoc Clay Prod. Co. v. Manitowoc, G. B. & N.W. Ry.., 135 Wis. 94, 101, 115 N.W. 390, 393 (1908). They are not limited to farm or agricultural use. Rather, "[t]he words 'farm crossings' are descriptive of the kinds of crossings required for the use of occupants of adjoining lands, as distinguished from highway crossings ... and railroad crossings." Id. Thus, courts have ordered that farm crossings be established under the statute to enable owners whose lands are bisected by the railroad to operate a quarry,¹ a logging enterprise,² or, as in Manitowoc, a brickyard.

What primarily distinguishes a farm crossing from a highway crossing is the lesser degree of protection offered to its users, and the fact that the crossing exists "only to accommodate the occupants of [the adjoining land]." Weiss v. Chicago, N. S. & M.R.R., 9 Wis. 2d 581, 590, 101 N.W.2d 688, 693 (1960).

A farm crossing is the simplest, or "lowest," form of railroad crossing. It is private in character, access to the same being through or upon private lands, and its purpose is only to accommodate the occupants of such lands. The statutes set out no standards for the establishment and maintenance of a farm crossing except that it be "suitable and convenient" for the use of the adjoining landowner. At such a crossing the railroad is not required to maintain warning signs or give warning whistles or slow the speed of its trains. In stating that a farm crossing shall be "suitable and convenient" the law does not contemplate any use of the crossing which would make such regulation necessary in the interest of public safety.

Id. (emphasis added).

A farm crossing under sec. 192.33(1), Stats., then, has two primary characteristics: it is private in nature and is the "lowest form" of crossing in that it is not intended to entail any use which would make warning signs or signals or train speed limits, or similar safety precautions, "necessary in the interest of public safety."

In this case the golf course will be open to the public and, as we have noted, will involve more than 85,000 crossings by golfers each year. The trial court concluded, nonetheless, that various "restrictions" proposed by Sixmile on the use of the course — guarding against trespassers, and adopting rules providing that all golfers must check in at the clubhouse before playing, where they will receive a written admonition to read and obey all signs located on the course and be required to sign a hold-harmless form — will ensure that the crossings will remain private and "not [be] convert[ed]... into... public crossing[s]." We disagree. We do not believe such "restrictions" are adequate to render the crossings private in the face of Sixmile's acknowledgement that the course "will be a public golf course," and that "[a]nybody from the public can play ... [a]s long as they pay the greens fee."

Nor do we consider the proposed crossings to be of such a nature as "not [to] require[ ] ... warning signs" or similar safety devices. Indeed, the trial court itself felt the need to impose added safety requirements as a condition of its order, directing that Sixmile, among other things, (a) erect and maintain stop signs and crossbuck signs at each crossing, (b) paint stop lines on the pavement adjacent to each side of the track in the area of the crossings, (c) place additional warning signs directing golfers to stop and look both ways before entering the crossing and still more warning signs at 300-foot intervals along both sides of the track, (d) maintain a level grade for thirty feet on each side of each crossing and remove all trees and vegetation along the right-of-way in order to maintain a "sight distance" of 400 feet on either side of the crossing, and (e) implement the rules regarding advance golfer check-in, distribution of written warnings and execution of hold-harmless agreements, discussed above.³

As we have said, "farm crossings," as contemplated by sec. 192.33(1), Stats., are those entailing a limited private use for which such warnings and safeguards would be "[un] necessary in the interest of public safety." Weiss, 9 Wis. 2d at 590, 101 N.W.2d at 693. In this case, the trial court went to great lengths to emphasize its concern for considerations of safety at the proposed crossings and conditioned its order requiring their construction upon Sixmile's installation and implementation of a variety of signs, warnings and safety-related operations. If the crossings are of such a nature as to require these additional safeguards, they cannot be considered farm crossings within the meaning of the statute. We therefore reverse the judgment entered on December 17, 1992, and remand to the trial court with directions to grant C&NWs motion to quash the alternative writ and dismiss Sixmile's action.

By the Court. — Judgment reversed and cause remanded with directions.

1 Buffalo Stone & Cement Co. v. Delaware, L. & W. Ry., 29 N.E. 121 (N. Y. 1891).

2 Caldon v. Chicago, St. P., M. & O. Ry., 85 Wis. 527, 55 N.W. 955 (1893).

3 In an attempt to justify its argumentative assertion that we are "penalizing" Sixmile for its good works in supporting safety at the crossings, the dissenting judge criticizes as erroneous our reference to the trial court's "requirement" that warning signs and other safety measures be included in the crossings. The criticism ignores the plain language in the court's judgment that "Petitioners-Plaintiffs shall incorporate and employ all the precautions set forth on Exhibit No. 19 for so long as they use their property as a golf course " The exhibit was prepared by Sixmile, so it is true that they suggested the precautions. It is also true, however, that the trial court, recognizing the need for safety devices at the crossings, did indeed "require" that they be installed as a condition of approving the crossings.