Milwaukee & N. R. Co. v. Strange

• Decision Date: 28 April 1885
• Citation: 63 Wis. 178,23 N.W. 432
• Court: Wisconsin Supreme Court
• Parties: MILWAUKEE & N. R. CO. v. STRANGE, IMPLEADED, ETC.

63 Wis. 178

23 N.W. 432

MILWAUKEE & N. R. CO.

v.STRANGE, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed April 28, 1885.

Appeal from circuit court, Winnebago county.

The railroad company filed its petition under section 1852, Rev. St., to have the rights and interest of the parties to the proceedings ascertained and determined, and that if, upon such determination, it should appear that the petitioner had not acquired or perfected full title to the land in question, then that proceedings be had to condemn the same, etc. The respondent, John Strange, counter-claimed, and prayed condemnation and compensation. On the hearing, the court, by an order dated July 14, 1884, found, in effect, that the petitioner was entitled to have and take for the use and purposes of its railroad the 20 feet in width of the land described, the center line of which was the center line of the petitioner's track and road-bed as constructed, maintained, and used; that the road-bed and track were so constructed in 1874 by a railroad company, the rights to which and in the land in question the petitioner had succeeded; that said road-bed and track had been maintained, operated, and used as such by the petitioner and its predecessor ever since they were so constructed in 1874; that at the time of the location and construction of such road-bed and track upon such strip of land across said premises, one Roxana F. Ladd was the owner in fee of said premises, and continued to own the same until November 6, 1880, when she and her husband deeded the same to the respondent, John Strange, and one P. V. Lawson; that said P. V. Lawson having died, his widow and heirs conveyed an undivided one-half interest in the premises to said John Strange, who has since retained the same; that May 16, 1883, the said Roxana F. Ladd and her husband, for a valuable consideration, duly released under seal the petitioner and its predecessor from all damages that arose or accrued to them, or either of them, by reason of said construction, operation, and maintenance of said road-bed and track across said premises, and acknowledged a full satisfaction to said companies of all damages that existed, and that they had or claimed against them, by reason of such construction, operation, and maintenance; that John Strange was entitled to damages by reason of such construction, operation, and maintenance, from November 6, 1880, and for the future; that commissioners of appraisal should be appointed to assess such damages herein to said John Strange; and three persons were therein appointed for that purpose, and the time of their first meeting fixed, and their duties and compensation prescribed. The petitioner filed exceptions to the portions of the order against its interests. Thereupon the petitioner, upon the records, proceedings, and papers on file in the cause and theretofore served, obtained an order to show cause why such prejudicial portions of the order should not be reversed, vacated, and set aside, and instead thereof a finding and decision be made that said John Strange was not and is not entitled to any damages by reason of the construction, operation, and maintenance of said railroad across said premises, at any time or to any amount, and that said proceedings be dismissed, etc.

Upon the hearing of the motion, it was determined and ordered that the said motion mentioned in the order to show cause, and each and every part of the same, and the relief therein asked, be and the same were thereby denied; and that said order of July 14, 1884, be in all respects declared void, except as to the sixth finding, giving Strange damages from November 6, 1880, which was made to stand modified as follows, to-wit: “that said John Strange is entitled to damages by reason of the construction, operation, and maintenance of said railroad across said premises from the date of the commencement of these proceedings, and for the future;” from which order the petitioner brings this appeal.Geo. H. Noyes, for appellant.

P. V. Lawson, for respondent.

CASSODAY, J.

The order of the circuit court refusing to set aside an order of the judge thereof condemning land for the use of a railroad company, is a final order affecting a substantial right in a special proceeding, and is therefore appealable. Sections 1852, 3069, sub. 2 Rev. St.; Wisconsin Cent. R. Co. v. Cornell University, 52 Wis. 537, and 49 Wis. 162;S. C. 8 N. W. REP. 491, and 5 N. W. REP. 331. The purpose of the petition seems to have been to quiet the company's title to the land in question, under section 1852, Rev. St., on the assumption that it had already acquired a permanent right to the same. It may be questionable whether such petition could be maintained for the mere purpose of quieting title. Where that is the only purpose, it is not perceived why a railroad company should not bring its action therefor the same as any other party. But here the respondent counter-claimed and prayed compensation. The prayer having been granted, the question is here upon its merits.

There can be no doubt but what the company, under its charter and statutes, had the right to take and condemn the land in question for its track and road-bed....