Jeffery v. Chi. & M. Elec. R. Co.

• Decision Date: 03 March 1909
• Citation: 138 Wis. 1,119 N.W. 879
• Court: Wisconsin Supreme Court
• Parties: JEFFERY ET AL. v. CHICAGO & M. ELECTRIC R. CO.

138 Wis. 1

119 N.W. 879

JEFFERY ET AL.

v.CHICAGO & M. ELECTRIC R. CO.

Supreme Court of Wisconsin.

Feb. 16, 1909.

Concurring Opinion March 3, 1909.

Appeal from Circuit Court, Kenosha County; E. B. Belden, Judge.

Condemnation proceedings by the Chicago & Milwaukee Electric Railroad Company against Thomas B. Jeffery and another. From a judgment for plaintiffs, on an appeal from the award of the commissioner, defendant, the railroad company, appeals. Reversed, and remanded for new trial.

The appellant, a corporation organized under the general railroad act of the state of Wisconsin, and operating its line by electric power, in November, 1905, filed its petition for condemnation, in which it averred that the lands belonged to one of the respondents, Thomas B. Jeffery, and prayed that the whole of the lands described in the petition be taken. The lands described consisted of a strip 100 feet wide and 1,013 feet long, and was a part of the manufacturing plant and site of the respondent. The court, on the hearing of the petition, determined that all of such real estate was required by the appellant for the purpose of constructing, maintaining, and operating its main line of railway, and that the appellant was entitled to take the whole of the real estate described in the petition, and appointed commissioners in accordance with the statute. The commissioners made and filed their award March 3, 1906, wherein they found that the respondent Thomas B. Jeffery was the owner of the premises in fee sought to be condemned, and that the value thereof, including the inchoate right of dower of his wife, Kate E. Jeffery, was $50,508. Upon making such award the appellant entered into the exclusive possession of the lands condemned, and built and constructed a system of railroad tracks for the purpose of operating cars thereon. The petitioner, appellant here, appealed from the award, and upon the trial in the circuit court counsel for appellant made the following offers to the attorney for respondents:

“Thereupon the defendant made the following offer, and at the request of the plaintiffs the jury was excluded:

The defendant, the Chicago & Milwaukee Electric Railroad Company, offers to stipulate and bind itself either:

(1) To maintain a crossing over its tracks at the point where the crossing now exists, or at such other point as the plaintiff may designate between the works proper of the plaintiff and that track which is known as the ‘testing’ track, in perpetuity, and to keep it planked and in good condition, and to maintain in perpetuity at this crossing a bell or signal, to be operated by electricity, which will operate automatically whenever any car gets within the block, so called, approaching this crossing, the block being about 1,000 feet north and 1,000 south of the crossing.

(2) The defendant offers to stipulate and bind itself to construct a subway, if permitted by the plaintiffs, under the defendant's tracks leading from such portion of the parcel of plaintiff on the east side of its tracks to such part of his tract on the west side of the defendant's track as may be convenient for and designated by the plaintiff, and to maintain it in perpetuity and keep it drained; such subway to furnish complete and safe means of ingress and egress from the parcel of land now used by the plaintiff as a testing track.

(3) The defendant also offers to stipulate and bind itself to maintain a conduit, not exceeding 24 inches in diameter, under its right of way, from that portion of the plaintiff's works lying to the east of the right of way to the portion of plaintiffs' land on the west thereof; to maintain the same in perpetuity; such conduit being for the use of the plaintiff for laying steam pipes or electric wires or other means of transmitting power or heat or light from one portion of plaintiffs' property to the other.

(4) The defendant also offers to stipulate and bind itself to give leave to the plaintiffs to build and maintain across defendant's right of way two, or even three, bridges, provided the bridges give a clear height of 23 feet from the top of the rails of the defendant's track, the supports to be on the ground of the plaintiffs, and not upon the right of way of the defendant.

The Court: May I ask, Mr. Quarles, just what purpose you design here that is to serve in this case?

Mr. Quarles: We propose to ask a special verdict--damages without any stipulations, damages with one or more of them--and then follow the line indicated by the Supreme Court of Wisconsin, which was that judgment might be entered for the larger amount, and stayed as to a part diminution if found by the jury, until such time as the court might fix for the completion of the offer.”

The defendant made the following offers, the jury being excluded:

“Mr. Lines: The defendant offers to bind itself, and hereby offers to grant, by proper conveyance to the plaintiff, the right to construct and maintain, under the right of way of the defendant, such subway as the plaintiff may deem sufficient and necessary for the purpose of access to the grounds occupied by his testing track, by machines and by teams and by men, and for any such purpose in connection with the plaintiff's business, the same to be constructed upon such plans and specifications as the plaintiff may desire, providing the same does not interfere with the use of the right of way for railway purposes by the defendant; the same to be constructed and maintained at the plaintiff's expense. And also hereby offers to grant to the plaintiff the right to construct and maintain, at his own expense, under the right of way of the defendant, such conduit or conduits as the plaintiff may desire, for the purpose of transmitting heat, power, light, or water from one portion of plaintiffs' premises to the other; the same to be located at such point or points as the plaintiff may elect, and to be constructed upon plans and specifications selected by plaintiff; but in such manner as not to interfere with the use of defendant's right of way for railway purposes.

Defendant offers to prove, by cross-examination of Mr. Jeffery, and such other witnesses as plaintiff may produce upon the question of damages to plaintiffs' property, the extent and amount of the damages to that property in case of the acceptance by the plaintiff of any or either of the offers which defendant has made to the plaintiff, and also to prove such damages by witnesses called by the defendant.

It is thereupon stipulated in open court that this offer of a grant, and also offer of proof, is made and is to be considered as having the same force and effect as though made with a witness upon the stand, subject to the understanding that plaintiffs object to the stipulations and to the offers of proof as incompetent, irrelevant, and immaterial at this time, which objections were sustained by the court. Exception by defendant.

The defendant further offers to prove that on the 26th day of January, 1906, the defendant served on the plaintiffs a notice that there had been left with Charles A. Tarbell an option, executed by Frances C. Newell and others, owners of a strip of land lying immediately west of plaintiff's property and between it and the Bain private road, so called, as shown on plaintiff's Exhibit E, for the sale of said property at the price of $2,327 at any time within three months from the date of said option, to wit, January 8, 1906, said option running to Albert C. Frost, of the city of Chicago, or his heirs and assigns, together with an assignment of said option from said Albert C. Frost to the plaintiff, which notice had attached thereto a copy of said option and assignment, and further notified the said plaintiff that the same would be delivered to Thomas B. Jeffery upon his signing a receipt for the same, at any time prior to the first meeting of the commissioners to be appointed to award the compensation in the matter of the condemnation of the strip of land in question.

Defendant also offered to prove that the defendant deposited the original option, and the assignment thereof mentioned in the notice served upon plaintiff, with Charles A. Tarbell of the city of Kenosha, on or prior to the date of the service of said notice upon plaintiff.

Which offers were objected to by the plaintiff as incompetent, irrelevant, and immaterial, and were sustained by the court.”

The court excluded the offers from the case, to which ruling the appellant duly excepted. Appellant also excepted to various rulings on the admission and exclusion of evidence; to the charge and refusal to charge; also to the refusal to submit the questions proposed by the appellant for a special verdict as follows:

“(1) What was the market value on March 3, 1906, of the strip of land condemned and taken in these proceedings?

(2) In what amount, if any, was the market value of the real estate of the plaintiff which was not taken diminished by the taking of the strip so condemned, in view of and considering only the uses to which such real estate was put on said 3d day of March, 1906?

(3) Did the plaintiff, on March 3, 1906, intend to construct in the immediate future any factory building, or buildings to the westward of the spur track running from the Chicago & Northwestern Railroad past the west side of his factory buildings?

(4) If you answer the third question in the affirmative, then what building, or buildings, did the plaintiff then intend to so build?

(5) If you answer the third question in the affirmative, then by what amount, if any, was the market value of the real estate of the plaintiff which was not condemned and taken diminished by reason of interference by the condemnation and taking of said strip of land with the intended uses found by you in answer to the fourth question?”

The court submitted, and the jury returned, the following special verdict:

“(1) What was the fair market value, on March 3, 1906, of the strip of land condemned and...