Diedrichs v. Nw. Union Ry. Co.

• Decision Date: 16 December 1879
• Citation: 3 N.W. 749,47 Wis. 662
• Parties: AUGUST DIEDRICHS, RESPONDENT, v. THE NORTHWESTERN UNION RAILWAY COMPANY, APPELLANT.
• Court: Wisconsin Supreme Court

47 Wis. 662

3 N.W. 749

AUGUST DIEDRICHS, RESPONDENT,

v.THE NORTHWESTERN UNION RAILWAY COMPANY, APPELLANT.

Supreme Court of Wisconsin.

Filed December 16, 1879.

Appeal from Milwaukee circuit court.

Cotzhausen, Sylvester & Scheiber, for respondent.

L. S. Dixon and E. Mariner, for appellant.

COLE, J.

1. The first point relied on for a reversal of the judgment relates to the question of title. It is insisted on the part of the company that in this proceeding to obtain compensation the plaintiff was bound to prove title to the particular strip of land taken to be in himself; in other words, he must connect his paper title with the premises described in the award or he could not recover. As the foundation of his title the plaintiff put in evidence a patent from the United States to Morgan L. Martin of lot No. 2, bearing date December 27, 1842, under which he derived title through several mesne conveyances. Thereupon the plaintiff's counsel stated that it was admitted by counsel (referring to an admission on the former trial) that fractional lot No. 2 was entered August 1, 1835, by Peter Juneau with duplicate certificateNo. 16, and that he, before the making of the plat, assigned the certificate to Morgan L. Martin; that this entry was cancelled December 16, 1841, and April 5, 1842, the lot was entered by William Powell with duplicate certificate No. 9399; that on the 21st of April, 1842, Powell assigned the certificate to Morgan L. Martin; that Morgan L. Martin conveyed an undivided half of the lot to Solomon Juneau November 28, 1835.

To this statement the counsel for the defendant said: “We will admit the entry August 1, 1835, by Peter Juneau, and the assignment of the certificate to Morgan L. Martin, and the conveyance of an undivided half by Martin to Solomon Juneau November 28, 1835. I will admit what the facts are, and with regard to the other I will ascertain between now and to-morrow morning.” The plaintiff's counsel then said: “You also admit the subsequent entry of Powell with duplicate certificate.” To which the defendant's counsel replied: “That is a thing I don't know about,” and here the matter rested.

The plaintiff further offered the assignment of the certificate by Powell to Martin, which was admitted in evidence, against the plaintiff's objection. Now it is said the court erred in admitting in evidence the certificate of entry by Powell, because it appeared that the United States had previously sold the land by Juneau's entry, which prima facie carried the title; consequently the subsequent entry, though followed by a patent, was void under the decision in Wirth v. Branson, 98 U. S. 118.

The former entry by Juneau appeared to be in evidence only from what was stated by plaintiff's counsel to be admitted on the other side. And in respect to that statement, by way of admission, the whole of it must be either considered in evidence or no part of it; for, considering the manner the whole matter was dropped or disposed of on the trial, it would be a most unfair advantage to allow the defendant to have the benefit of the statement so far as it makes in his favor, but to reject whatever makes against him. The entire statement must be treated as being either in or entirely out of the case, and it is immaterial what view is taken of it, for the result will be the same. If the whole statement is regarded as an admission in the cause, then it plainly appears that Juneau's entry was vacated and cancelled before Powell's was made. In that case the patent would be regular, and show title to the lot in Martin. On the other hand, if the statementor admission is deemed out of the case, then there is nothing to show that Powell's was not the only entry. Under the circumstances we have less reluctance in adopting this view, because on the former trial and hearing it was practically conceded that the plaintiff's title extended to the water's edge, and the decision as to riparian rights was based upon that assumption. 42 Wis. 248. The proof in the present case was sufficient to show title to the premises to be in the plaintiff.

2. The next error assigned relates to the admission against defendant's objection, of certain questions asked the witness Ferdinand Kuehn. The witness had testified to the value of the block in controversy, both before and after the strip was taken by the company for the use of its road. The witness was asked and permitted to state, against the defendant's objection, whether the balance of the block not taken by defendant was increased or diminished in value by reason of the strip taken being used for the purposes of operating a railway. He answered that it was materially depreciated, stating the value of the block before the road was built and after. This question was then asked: “After that strip is taken out of that property, how much, in your judgment, is the balance of the property depreciated in value by reason of the strip being operated for the use of the railway, not by reason of the taking out of the strip, because that we have got already, but for the uses of the railway; how much does that depreciate the market value of the property?”

This question was objected to on the ground that it had not been proven that the witness had such knowledge of the effect of operating a railway as would enable him to testify of the effect upon the value of the same.

We do not think this question so seriously objectionable as should work a reversal of the judgment. As we understand the case the testimony of Mr. Kuehn, as given on the former trial, was read on this trial by stipulation. Upon examining his evidence it will be seen that he testified that he had acted for several years as the agent of the plaintiff in looking after this property. He had paid the taxes, given leases, collected rents, received offers to purchase, and was personally well acquainted with the...