
    Eastern Wisconsin Railway and Light Company, Respondent, vs. Winnebago Traction Company, Appellant.
    
      October 26
    
    November 14, 1905.
    
    
      street railways: Ordinances granting option to build single or double trade railway: Election.
    
    Municipal ordinances granted to a street railway company a right to build and operate on certain streets “a single or double track railway, with all necessary switches and turnouts,” provided it was built and in operation on or before a certain time. The company built and put in operation within that time a single-track railway. Held, that the grant was of an option to do one of two things, and the company, having elected to build the single-track railway, had no right, after the time stated, to convert its line either wholly or partially into a double-track road.
    Appeal from an order of the circuit court for Winnebago ■county: Geo. W. Buenell, Circuit Judge.
    
      Affirmed.
    
    The plaintiff is a railroad corporation operating an electric interurban railway between the cities of Oshkosh and Fond du Lae, and the defendant is a street railway corporation operating an electric street railway system in the city of Oshkosh. At and prior to the time of the commencement of this action the defendant operated a single-track street railway, with turnouts and switches, upon various streets in the city of ‘Oshkosh, and had a single track upon Main street in Said city running south from a point near the intersection of High street to and across Main street bridge, over Fox river, and for three blocks on South* Main street to1 its intersection with Ninth street. The present action involves the right to lay and operate a second track upon said parts of Main and South Main streets above mentioned, which right is claimed by each party under city ordinances. Just prior to the commencement of this action the plaintiff had laid a second track upon that part of South Main street above mentioned, and was about to continue the same across the bridge and upon that part of Main street north of the bridge. The complaint charged that the defendant was about to lay a second track upon the parts of Main and South Main streets aforesaid by force, and to exclude the plaintiff therefrom, and prayed for a permanent injunction against such action, and for an injunctional order •pendente lite. Upon the hearing of the motion for the temporary restraining order it appeared. that the defendant’s rights in the street were based primarily upon two ordinances passed by the common council of the city of Oshkosh in the year 1897. The first of these ordinances, passed June 30, 1897, granted to the defendant’s assignor, the Citizens’ Traction Company, the right to build, operate, and maintain for a period of thirty-five years from January 1, 1897, “a single or double track street railway, with all necessary switches or turnouts, to be laid under the direction of the board of public works” on certain streets of the city, not including the streets in controversy here, and contained a proviso that the entire line was to be completed and in operation on or before January 1, 1899. The ordinance further provided that, in case of' failure to build, complete, and operate said road, or any part thereof, within the time fixed by the ordinance, all rights and' privileges under the ordinance should cease and be forfeited. The second of said ordinances, passed November 16, 1897,. amended the preceding ordinance by adding thereto the right to build upon certain additional streets, including the streets now in controversy, and changed the proviso by requiring that tbe entire line should he completed and in operation on or before July 1, 1898, but otherwise made no material changes in the first-named ordinance. Under these ordinances the defendant’s assignor constructed its railway system within the time limited, which system is shown by affidavits to have been substantially a single-track system, with turnouts and swatches, and operated the same until March, 1900, when the ■defendant purchased the same. October 10, 1901, the city again amended the original ordinance by giving the right to the defendant to build upon certain additional streets, and requiring that the whole line should be completed and in operation on or before July 1, 1902. The additional lines authorized by this ordinance were built and put in operation within the limited time, and were also single-track lines. November 10, 1903, the common council of Oshkosh passed an ordinance granting to the plaintiff the right to lay and maintain a single or double track for an electric interurban street railroad, with necessary turnouts, upon South Main street, Main street bridge, and Main street, provided, however,
    “that no more than two tracks, including those heretofore laid or existing, or which any other railway company has a right to lay under existing franchise or franchises, shall be laid along •said streets, but in lieu of the laying of such tracks whére a single or double track has been heretofore laid or shall hereafter he lawfully laid by another company on any part of said street, the said Eastern Wisconsin Bailway & Light Company is hereby authorized to carry and operate its interurban cars over and along such tracks of any other company by purchase, lease, or other contract arrangement with such company or any other company now owning or using an existing track or tracks along any of said streets.”
    By the terms of this last-named ordinance the railroad was to be completed and in operation on or before August 1, 1905, in default of which all rights thereunder ceased. Prior to the passage of this ordinance the plaintiff had acquired by purchase the track and franchises of the Pond dn Lac & Oshkosh Railroad Company, a corporation which owned and operated an interurban electric road from Eond du Lac to a point a mile and a half south of the city limits of Oshkosh, at which point its tracks joined the defendant’s tracks, and its cars came into the city of Oshkosh over the defendant’s road, including the parts of Main and South Main streets in question, by virtue of a contract made with the defendant, which by its terms gave that right for the full term of the defendant’s franchise. This contract was assigned to, and the obligations thereto assumed by, the plaintiff November 3, 1903. On June 8, 1905, the plaintiff began the construction of a second track on South Main street, between Ninth street and the aforesaid bridge, parallel to and east of the defendant’s track, and partially completed the same, and upon the same day commenced this action and procured an order to show cause why the defendant should not be enjoined from interfering with said track so laid on South Main street, and from laying any track itself in North Main street between said bridge and High street. A counter motion was thereupon made, by the defendant, asking that the plaintiff be enjoined pendente lite from laying any track, either in South Main street or Main street. Both motions were heard together, and the court made an order restraining the defendant from interfering with the plaintiff’s track so laid in South Main street, or laying a second track therein, and also restraining the plaintiff from laying a track in North Main street until the final determination of the action. Erom that part of the order enjoining the defendant from laying a track in South Main street, or interfering with the plaintiff’s track therein, the defendant appeals.
    Eor the appellant the cause was submitted on the briefs of Weed & Hollister.
    
    They contended, inter aliathat the building and operation of a system composed of single and double track on all the streets named vested in appellant for the full term of thirty-five years from January 1, 1897, every right and privilege conferred by the ordinance. The ordinance became a contract between the state and the appellant. The right to lay additional tracks to meet the demands of the public and the business of the company became a valuable property right which cannot be destroyed or taken away without just compensation. Nellis, Street Surface Eailroads, 32, 37; Elliott, Eoads & S. §§ 741,‘750, 752; Dartmouth College v. Woodward, 4 Wheat. 518; Pearsall v. Or. N. B. Co\ 161 U. S. 646; In re Union El. B. Co. 113 N. Y. 275. Where an ordinance permits the laying of a single or double track and the company lays a single track, the right to lay an additional track becomes a vested right that can be exercised by the company whenever occasion requires. Nellis, Street Surface Eail-roads, 109, 128; Booth, Street Eailroads, § 51 and notes; 27 Am. & Eng. Ency. of Law (2d ed.) 35, 55; Bansom.v. Citizens’ B. Co. 104 Mo. 375; Hestomille, M. & F. P. B. Co. v. Philadelphia, 89 Pa. St. 210; Henderson v. C. P. B. Co. 21 Eed. 358, 368, 369; Workman v. 8. P. B. Co. 129 Cal. 536; Philadelphia, W. & B. B. Co. v. Williams, 54 Pa. St. 103; People’s P. B. Co. v. Baldwin, 14 Phila. 231; Burlington v. Burlington St. B» Co. 49 Iowa, 144; Houghton Co. St. B. Co. v. Lamriwm, 135 Mich. 614, 2 St. E. Eep. 487; Wright v. Milwaukee E. B. é L. Co. 95 Wis. 29.
    Eor the respondent there were briefs by Bowk <& Hilton and A. E. Thompson, and oral argument by Mr. Thompson, John F. Kluwin, and T. W. Spence.
    
    They argued, among other things, that a grant by a municipality under authority from the state is to be taken most strongly against the grantee, and nothing is to be taken by implication against the public. People v. Broadway B. Co. 126 N. Y. 29; State ex rel. Cream City B. Co. v. Hilbert, 72 Wis. 184; Jackson Co. H. B. Co. v. Interstate B. T. B. Co. 24 Eed. 306-308; Oakland v. Oakland W. F. Co. 118 Oal. 160; 4 Thomp. Cbrp. § 5345. The defendant and its predecessors having exercised their option to build a single-track railway and to build in South Main street and tbe lower portion of Main street but a single track, tbe power, whatever it may bave been, under tbe franchise'to build a double-track street railway is exhausted. Bush v. Jackson, 24: Oal. 308; Pennsylvania 8. V. B. Co. v. Phila. & B. B. Co. 157 Pa. St. 42. See, also, Street B. Co. v. West Side St. B. Co. 48 Mich. 433; Workman v. S. P. B. Có. 129 Cal. 536, 543-545. In determining tbe rights of rival claimants to tbe use of tbe streets, tbe courts are largely influenced by a consideration of tbe public welfare. Ft. Worth St. B. Co. v. Bosendale St. B. Co. 68 Tex. 169; Chicago Gc. B. Co. v. West Chicago St. B. Co. 63 Ill. App. 464.
   WiNsnow, T.

There was much discussion in tbe briefs of counsel upon tbe question whether tbe defendant bad forfeited its right to construct double tracks in tbe streets of the city .of Oshkosh; but, as we view it, that question is not tbe question upon which tbe case turns. Tbe defendant acquired, by tbe ordinances under which it operates, tbe right to build and maintain “a single or double track railway, with all necessary switches and turnouts,” upon certain streets of tbe city, provided that tbe entire line should be completed and in operation on or before a certain date. Tbe question presented is simply as to tbe proper construction of this grant. Should it be construed as granting to tbe defendant tbe right to build within a certain time either a single-track railroad or a double-track railroad, or should it be construed as granting tbe right to build a single-track railroad within tbe prescribed time, and to lay additional tracks at any place and at any time in tbe future and thus convert it wholly or partially into a double-track road as it might choose ? In other words, was tbe right an option which must be acted upon within a certain time, and which was exhausted when acted upon; or was it a continuing privilege to lay either single or double tracks at any time within the life of the franchise ?

This is purely a question of the proper and reasonable con•struction of the language used, and there is little in the way of authority which throws any light on the subject. The cases of Ransom v. Citizens’ R. Co. 104 Mo. 375, 16 S. W. 416, and Burlington v. Burlington St. R. Co. 49 Iowa, 144, are relied upon by the appellant as tending to support its contention, but it is plain that they have no material bearing on the question. In the first case cited the city of St. Joseph granted to the plaintiff a right of way for the construction and operation of street railways in the city, with the power and privilege to construct double tracks with turnouts and switches; the same to he completed within a specified time. A single track was laid and operated for many years, when the company prepared to lay a double track, and an adjoining property owner challenged the right. The court, while confessing that the language was not clear, held that the true import of the words of grant appeared by treating the words “with the power and privilege to construct double tracks” as if in parenthesis. With this interpretation there was no question hut that the right was a continuing one. In the second case cited the city by ordinance granted the company authority to lay single or double tracks on certain streets, and the company laid a single track. Afterwards the city attempted to amend the ordinance and take away the right to lay double tracks, and it was held that the original ordinance with its acceptance constituted a contract which the city had no power to change. These cases are not helpful upon the proposition before us, nor does the case of Workman v. S. P. R. Co. 129 Cal. 536, 62 Pac. 185, 316, throw any light upon it.

That a single-track railroad and a double-track railroad are •entirely different things is made clear by the affidavits used upon the motion, and is doubtless a matter of common knowledge. That the defendant’s road was a single-track road is ■equally clear. It had turnouts and switches, some of them ■500 or 600 feet long, and one, crossing a bridge, over 1,000 feet long; but it clearly appears that they were nothing more than switches or turnouts, which, of course, are absolutely necessary in the operation of a single-track road. If the grant' was the grant of an option to build one or the other, it is certain that the company exercised its right of choice. Looking at the language used fairly and reasonably it seems to us quite clear that it was an option. A right to do either one of two different things within a certain time is a right to do one thing, not two. Here the right was to build and operate “a single or double track street railway,” provided it was built and in operation on or before ‘a certain time. A single-track railway was built and in operation within that time. One' alternative was accepted, and the other was rejected and necessarily lapsed, because both were not offered. This view necessitates affirmance.

By the Court. — That part of the order which is appealed from is affirmed.  