Wright v. Milwaukee Electric Railway & Light Co.

36 L.R.A. 47, 69 N.W. 791, 95 Wis. 29, 1897 Wisc. LEXIS 141

Opinion

WiNslow, J.

The question presented is whether the right and duty to operate a street railway oyer the two blocks in front of the plaintiffs’ lots had been extinguished at the time of the commencement of this action. The power to grant the right in question was conferred upon the city by the provisions of sec. 1862, E. S. 1878, as amended by ch. 219, Laws of 1881. At common law such a franchise or right was undoubtedly inalienable. State ex rel. Milwaukee St. R. Co. v. Anderson, 90 Wis. 550. A sale and transfer thereof may, however, be authorized by statute. Chapman Valve Mfg. Co. v. Oconto W. Co. 89 Wis. 264. Such authority has been granted by the statutes of this state. Laws of 1883, ch. 221, as amended by Laws of 1891, ch. 127. The statute also authorizes a corporation to mortgage its franchises. E. S. 1878, sec. 1748, subd. 7. So, it would seem that there can be no question but that the various conveyances and assignments by which the franchise in question has finally come into the ownership of the present defendant are valid and operative. Such being the case, it will be necessary to consider the legal nature of the right to lay tracks and operate a street railroad in a public street.

Such a right necessarily includes an easement to use the street for the time, in the manner, and under the conditions specified in the ordinance. The ordinance, when accepted and acted upon by the grantee, becomes also a contract between the public, acting through the city council, on the one hand, and the railway company, on the other; the consideration for the partial surrender of the street being the advantages to the public arising from inexpensive and rapid transit, and the assumption by the company of the duty of continuing to furnish such transit during the life of the ordinance. But the right under consideration is something more than an easement, and more than a mere contract right. It is also a franchise granted by the state, acting through the common council of the city, to the railroad company. It becomes, when owned by a corporation, one of its corporate franchises, for failure to exercise which an action may be brought by the attorney general, in the name of the state, to vacate its charter, under sec. 3241, R. S. 1878. This was held in the case of State ex rel. Att'y Gen. v. Madison St. R. Co. 72 Wis. 612, and has been affirmed in principle in numerous later decisions. Ashland v. Wheeler, 88 Wis. 607; State ex rel. Milwaukee St. R. Co. v. Anderson, 90 Wis. 550; State ex rel. Att'y Gen. v. Janesville W. Co. 92 Wis. 496.

By the acceptance of the terms of the ordinance, the railroad company assumed a public trust. It undertook to serve the public, by affording it rapid transit; and it became its duty to continue that service, not simply because it had contracted so to do, but because it had become charged with such duty by legislative grant. It could not lay down the burden when it chose, nor emancipate itself by merely ceasing to operate its cars. In case of attempt on its part to so shirk its duty as to a part of its road, it could, doubtless, be compelled, in proper proceeding, to resume its operation, and carry out the public duty which it voluntarily assumed. Attorney General v. W. W. R. Co. 36 Wis. 466-497. Certainly, in such case, action could be brought under sec. 3241, R. S., by the state, to forfeit its franchises and vacate its charter, for failure to exercise its public powers and perform its duties.

Coming now to the question whether the franchise has been extinguished, in the case before us, it is quite apparent that there are only four ways in which it can be claimed that such extinguishment could take place, viz.: (1) By op-ei’ation of some self-executing forfeiture clause in the grant; (2) by surrender of the franchise, and acceptance of such surrender on the part of the state; (3) by the decree of a court of competent jurisdiction, in an action brought for the purpose; (4) by abandonment or nonuser for so long a period that a surrender and acceptance will be presumed. There are no facts in the case upon which it can be claimed that the franchise has been extinguished in either of the first three ways above mentioned. There was no self-acting forfeiture clause in the ordinance which granted the franchise. There has been no surrender thereof, and acceptance of such surrender by the state, and no action has been brought to declare and enforce the forfeiture. There remains, then, for consideration, only the question whether it has been wiped out by nonuser for more than four years. It is argued that from this fact an abandonment of the franchise has resulted. It is evident that the term “abandonment,” as applied to a corporate franchise of this kind, is a misnomer. A mere privilege or right may, perhaps, be properly said to be abandoned in a proper case, although even in that Gase there must be something more than mere nonuser to constitute such abandonment. There must also be an act clearly indicating an intention to abandon. Washb. Easements (3d ed.), 661. But, while a mere easement or right may be abandoned, the word is plainly inapplicable to a duty owing to the state. A public duty is not to be laid down at will. In the case of a mere easement there is but one party interested, and he may voluntarily abandon his right; but in case of a public duty there are two parties beneficially interested,— i. e. the party who owes the duty, and the state to which the duty is owing. The necessary result must be that, in order to extinguish the duty, there must be concurrence on the part of the state. It has been held that a total nonuser of the franchises of a corporation may exist for so long a period and under such circumstances that a surrender of its franchises by the corporation, and acceptance of such surrender on the part of the state, will be presumed. The cases holding this doctrine are cited in Combes v. Keyes, 89 Wis. 297, and Attorney General v. S. & St. C. R. Co. 93 Wis. 604. The doctrine cannot be said to have been adopted by this court, however. In Combes v. Keyes, which approaches nearest to it, there had been complete nonuser for twenty-six years, and legislative acts impliedly accepting the surrender; and it was held that the corporation had passed out of existence. Similar is the case of Henderson v. C. P. R. Co. 21 Fed. Rep. 358, where nonuse of a street-car franchise for ten years, followed by a repeal of the franchise and a legislative grant of the same right to another company, was held to- extinguish the first franchise. The present case, however, is not such a case. The period of nonuse here was about four years and eight months. It was a period of great industrial depression, and of extraordinary financial difficulties on the part of the various corporations which successively owned the franchise. The old track became, by reason of the change in means of locomotion, practically worthless, and its entire ree'onstruction a necessity. It appears by affidavits of officials of the roads that it was always the intention to resume operation of these two blocks as soon as the financial atmosphere cleared. An ordinance declaring this franchise, with others, forfeited was introduced in the common council; but, upon representation by the company that it was the intention of the new company to operate the road over these blocks- in the near future, the clause forfeiting the franchise on the two blocks in question was stricken out. The only fact which can be claimed to indicate an intention to abandon the franchise is the fact that in 1892 the street was paved with wooden blocks, at the expense of the adjoining property owners, and that the old rails and ties -were then taken up, with, the knowledge and consent of the company. This fact, however, loses much of its apparent significance in view of the changes in roadbed made necessary by the introduction of electricity, and in view, also, of the other facts just referred to.

This, then, is the situation: There has been no cesser to use, accompanied by any act clearly indicating an intention to abandon the right. Even if it could be said that there was any such act, there has been no consent on the part of the public to such abandonment, nor acceptance of a surrender. The nonuse has not existed for such a length of time, or under such circumstances, that a surrender and acceptance of the franchise can be presumed. It follows that, when the plaintiffs commenced their action, the franchise was still in existence, and consequently the injunctional order was erroneous.

By the Court.— Order reversed, and action remanded for further proceedings according to law.