Gill v. Milwaukee & L. W. R. Co.

• Decision Date: 18 March 1890
• Citation: 76 Wis. 293,45 N.W. 23
• Court: Wisconsin Supreme Court
• Parties: GILL v. MILWAUKEE & L. W. R. CO.

76 Wis. 293

45 N.W. 23

GILL

v.MILWAUKEE & L. W. R. CO.

Supreme Court of Wisconsin.

March 18, 1890.

Appeal from circuit court, Fond du Lac county.

The proceeding was instituted in the circuit court by the respondent, Michael Gill, under section 1852, Rev. St., to procure the appointment of commissioners to appraise his damages caused by the taking of certain of his real estate by the appellant, the Milwaukee & Lake Winnebago Railroad Company, for the purposes of its railroad. The petition of the respondent alleges that he is the owner in fee of certain lots in the city of Fond du Lac, therein described, and, substantially, that a portion thereof has been so taken by the railroad company, and the residue damaged by such taking. The petition also contains other averments not material to the determination of this appeal. The railroad company answered the petition, denying the alleged taking and damage. On the issue thus formed, a hearing was had before the court, and testimony introduced, but the testimony is not preserved in the record. The court afterwards, under date of July 2, 1889, made an order appointing commissioners as prayed, and fixed therein the time and place of their first meeting. The order recites that no sufficient cause was shown against granting the prayer of the petitioner. No findings of fact or conclusions of law were filed, and the order contains no other recital than that the disputed facts stated in the petition were proved or disproved. Subsequently a motion was made on behalf of the railroad company that findings of fact and conclusions of law be prepared, settled, and served, and filed as of the date of such order. The motion was denied August 15, 1889. At a later term of the court, on the application and consent of the petitioner, and against objection in behalf of the company, the court made another order, dated September 7, 1889, appointing the same commissioners, and fixing a later date for their first meeting, but did not vacate the order of July 2d. The order of September 7th was applied for because counsel for the railroad company was not present when the commissioners were first selected, and it was thought advisable that an opportunity should be given the company to be heard in the matter of such selection. The railroad company appeals from each of the three orders above mentioned.Howard Morris and T. H. Gill, for appellant.

D. Babcock and R. M. Basleford, for respondent.

LYON, J., ( after stating the facts as above.)

Two reasons are urged for the reversal of the orders appealed from. These are: (1) The making and filing of findings of fact...