By the relator’s demurrer, to that portion of the return above quoted it must be considered as *230admitted that the defendant has neither property rights, easements,' nor franchise rights necessary for. the construction and operation of its railway upon that portion of Burn-ham street to which petitioner desires that it should remove its tracks. It must also be considered as admitted that the tracks as now laid are upon a private right of way which had been granted to it prior to plaintiff’s incorporation by the then owners of the freehold, subject only to the reserved right in said grantors to lay a highway upon and along said strip of land so conveyed.
It is manifest that such an interurban railway company whose tracks are laid upon a private right of way is in a substantially different position from and possesses property rights which do not belong to a similar company operating upon a public highway. To require it to move.from its present location on its own property to other property to ■which it has no property right, easement, or franchise would in effect amount to taking away the property right that it now has to the soil upon which its tracks are laid and requiring it to assume substantially different liabilities and obligations both as to the abutting owners on the new Burnham street and to the municipality.
Before it can lawfully run upon the new trackage as proposed by the petitioner it must, under the admitted facts, assume liabilities to the abutting property owners for which such owners are entitled to compensation. Before any right of condemnation can be exercised as against such abutting property owners by such interurban railway it must first obtain the consent of the municipality. Manitowoc v. Manitowoc & N. T. Co. 145 Wis. 13 (129 N. W. 925), and cases cited at p. 22.
We find no warrant under the provisions of the general charter law upon which petitioner relies, either by sub. (31), sec. 925 — 52, Stats., giving to cities authority to establish and alter grades of streets and sidewalks, or by sub. (51), sec. 925 — 52, Stats., as to regulating' the running of street *231railway cars, the laying of tracks for the same, and the transportation of passengers, etc., for the power proposed to be exercised in this particular instance.
The question involved in many of the cases cited in the respective briefs as to the power of the municipality to require the moving of a track once laid upon a public highway to ano'ther portion of the same, is not, under the facts as admitted by the' demurrer in this case, before us, and we therefore express no opinion thereupon and a review of such cases is- not necessary. A reference to many of them is found in the case of Grand Trunk W. R. Co. v. South Bend, 227 U. S. 544, 553, 33 Sup. Ct. 303. The distinction between the powers of the state and of a municipality in such matters is pointed out in People ex rel. New York v. N. Y. R. Co. 217 N. Y. 310, 112 N. E. 49.
Other questions were presented in the briefs in this matter, but we are disposing of this appeal upon the one point above determined and express no opinion upon the others. For the reasons above stated the demurrer to the return was properly overruled.
By the Court. — Order affirmed.