Hanlin v. Chi. & N. W. Ry. Co.

• Decision Date: 26 November 1884
• Citation: 21 N.W. 623,61 Wis. 515
• Court: Wisconsin Supreme Court
• Parties: HANLIN v. CHICAGO & N. W. RY. CO.

61 Wis. 515

21 N.W. 623

HANLIN

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Filed November 26, 1884.

Appeal from county court, Milwaukee county.

Small & La Due, for respondent.

Jenkins, Winkler & Smith, for appellant.

TAYLOR, J.

This action was brought by the respondent to recover damages against the appellant company upon two grounds. The first count or cause of action attempted to be set out in the respondent's complaint is based upon the facts that the respondent is the owner of certain lots, and buildings thereon situate, in the city of Milwaukee, on the west side of Beach street, in said city, and fronting on said street; that the predecessors of the appellant company in 1872 constructed a railroad along said street, and above the grade thereof, upon spiles, boxes, and cribs, in front of his lots and buildings, “without any authority from or consent by or from the plaintiff, and without having paid or offering to pay said plaintiff any compensation for his rights of property therein as an adjoining owner of real estate abutting on said Beach street, and without having condemned the plaintiff's rights of property therein as provided by the laws of the state of Wisconsin, in violation of the constitution and laws of said state.” The plaintiff then alleges that he has suffered damages as follows: First. By the loss of his right to the use of the whole of said Beach street as a public highway; second, by cutting off his access, which he theretofore had on said Beach street, to the watersof Lake Michigan, and the obstruction of his view which he theretofore had of said lake from his premises, by the standing and moving cars of the defendant in front of and along plaintiff's premises; third, that he is damaged and annoyed by the moving and running of the engines of the defendant along said track, in front of his lots and houses, at all times of day and night, by reason of which he and his family are prevented from getting their usual and necessary sleep and rest, and thereby injuring the health and comfort of the plaintiff and his family; fourth, that by reason of operating its engines and cars on said railway in front of his premises on said street, smoke, cinders, and sparks are emitted from the defendant's engines and are carried by the winds over, upon, and through the plaintiff's dwelling-house and buildings situated on his said premises, so that at times the plaintiff's family have been compelled, when the weather was very warm and the air close, to close the windows of his house fronting on the line of said railway to keep out said smoke, cinders, and sparks, in order to live or exist at all comfortably, and save his property and furniture from damage; fifth, that the building of the railroad, and moving of the engines and cars thereon, has rendered the locality in and about plaintiff's said premises unsafe and dangerous, by reason of the liability of said plaintiff's improvements standing thereon to take fire and burn by sparks emitted from said engines, and especially dangerous to pedestrians and teams to travel on said Beach street; and that, by reason of all said causes, the plaintiff's premises are greatly damaged, and depreciated in value in the sum of $5,000.

The second count or cause of action set up in the plaintiff's complaint alleges that in 1879 the defendant company filled up their track or road-bed along said Beach street, where the track before that time rested on piles, boxes, and cribs in front of said plaintiff's premises, and also across Detroit street, a street running east and west immediately north of plaintiff's premises, and that by reason of such filling of the defendant's track or road-bed the surface water created by sudden and violent rain-storms in that locality, and which by reason of the descending scale and lay of the ground, from the west to the east, along said Detroit street, and past the premises of the plaintiff, flowed into Lake Michigan on the east of plaintiff's premises, thereby draining and carrying off the surface and surplus water, and preventing the flooding of the lower story, cellar, and basement of said plaintiff's houses, and that, by reason of the filling of the railroad track along said Beach street, the flow of the surface and surplus water into Lake Michigan at times of sudden and violent storms was stopped and impeded, and said water accumulated to a great depth immediately on the north of plaintiff's premises on Detroit street, and that during the years 1881, 1882, and 1883, at three different times, there were sudden and violent rain-storms in that locality, and water in large volumes flowed down Detroit street from the west, and by reason of said embankments of earth-work, so made by the defendant along and under its track on Beach street, the water accumulated in great depth in front of said plaintiff's premises, and flowed into the lower story, cellars, and basements of plaintiff's houses to the depth of five or six feet, doing thereby great damage to personal property of the plaintiff therein, to the amount of $1,000. And he further alleges that by reason of the filling of the part of Beach street by the company, and the occupation thereof by said company for the purpose of its railroad, he has been compelled to fill up Beach street in front of his premises not occupied by the road-bed of the company to the grade of said railroad track in order to make his premises useful, and to raise his buildings, situated on his said premises, up to the grade of the street so filled and raised, at great cost and expense, and claims as damages therefor the sum of $5,000.

It is further alleged in this second cause of action that the railroad company, in filling Beach street for its road-bed, wrongfully and unlawfully broke the close of plaintiff's real estate, and entered and trespassed upon the plaintiff'spremises, of which premises and real estate said plaintiff is the owner in fee, subject only to the easement which the public have to said street as an ordinary public highway, and wrongfully converted to its own use about 2 feet in width and 80 feet in length, west of the center line of Beach street, immediately in front of plaintiff's adjoining and abutting property above described; and he then avers that he has sustained $15,000 damages, and demands judgment for that sum.

To this complaint the appellant company demur, for the following reasons: First, that several causes of action are improperly united in said complaint; second, that the complaint does not state facts sufficient to constitute a cause of action. There was also a demurrer to each separate cause of action stated in the complaint, on the ground that there are not sufficient facts stated to constitute a cause of action. The demurrers were overruled, and from the order overruling the same, an appeal was taken to this court.

The objections taken in this court by the learned counsel to the sufficiency of the complaint are-- First, if the first cause of action set up in the complaint shows that any part of the plaintiff's premises were taken for the use of the railroad, then he must seek his compensation under the statute, to have his compensation and damages assessed by reason of such taking, and that an action for damages will not lie under the circumstances set up in the complaint; second, if it be construed as not claiming that any of his property has been taken, then his claim to recover damages is such as are incidental to the lawful construction and operation of the company's railroad in the vicinity of his property; and for such damages he has no cause of action. As to the second cause of action, if it be construed as alleging a taking of plaintiff's property, then the first objection taken against the sufficiency of the first cause of action is good against this; and if it be not so construed, then no action will lie by reason of the construction of the defendant's road-bed, by reason whereof the flow of the surface-water is obstructed and caused to remain upon the land of the plaintiff.

We are inclined to agree with the learned counsel for the appellants, that if the facts stated in either of the alleged causes of action are to be construed so as to constitute a cause of action for the actual taking of the plaintiff's real estate, or any part thereof, for the use of the railroad company, then, upon all the facts stated, the plaintiff ought not to be permitted to sustain this action, for the reason that the facts stated show with sufficient certainty that the defendant has acquiesced for so long a time in such taking as to amount to a tacit assent thereto, and that, in such case, he must resort to his proceedings under the statute to have his damages assessed for such taking, and not by an action of trespass for damages. Section 1852, Rev. St., provides that “in any case where a railroad corporation shall not have acquired title to the lands upon which they shall have constructed their road-bed or track, or any part thereof, * * * they may proceed to acquire such title in the manner hereinbefore provided;” that is, by having commissioners appointed under the statute to ascertain the compensation they must pay the owner or owners for the lands so taken. This section further provides that “in every such case the party interested in such lands may institute and conduct the proceedings to a conclusion, if the corporation delays or omits to prosecute the same at its cost and expense.” The language of this section is certainly broad enough to cover every case where a railroad corporation has already constructed its road-bed or tracks upon the lands of another without having acquired title thereto by purchase or otherwise, and in every such case there can be no doubt but that the land-owner could proceed under the statute to have commissioners appointed to ascertain his compensation and damages for the taking of his property by the company for its road-bed, if...