Jeffery v. Osborne

• Court: Wisconsin Supreme Court
• Writing for the Court: WINSLOW
• Citation: Jeffery v. Osborne, 145 Wis. 351, 129 N.W. 931 (Wis. 1911)
• Decision Date: 08 February 1911
• Parties: JEFFERY ET AL. v. OSBORNE ET AL.

145 Wis. 351

129 N.W. 931

JEFFERY ET AL.

v.OSBORNE ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1911.

Dissenting Opinion Filed Feb. 8, 1911.

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

Proceedings by Kate E. Jeffery and others, as executors of the last will of Thomas J. Jeffery, deceased, and another, against W. Irving Osborne and others, as receivers of the Chicago & Milwaukee Electric Railroad Company, impleaded. From a judgment for plaintiffs, defendants appeal. Affirmed.

Marshall, J., dissenting.Quarles, Spence & Quarles (T. W. Spence, J. V. Quarles, Jr., and Jackson B. Kemper, of counsel), for appellants.

Thomas M. Kearney and James Cavanagh, for respondents.

WINSLOW, C. J.

This is a proceeding by an electric railway company to condemn a strip of land 100 feet in width running through the manufacturing plant of the respondents at Kenosha. The case was once here upon an appeal from the verdict of a jury fixing the damages at $125,000 (Jeffery v. C. & M. E. R. Co., 138 Wis. 1, 119 N. W. 879), and the judgment was reversed and the action remanded for a new trial. While the case was pending here the railway company was placed in the hands of receivers in an action in the federal courts, and upon return of the case to the trial court such receivers were made parties defendant on their own application. A second trial resulted in a general verdict for the plaintiff, assessing the damages at $133,000. From judgment against the railway company upon this verdict, the receivers have appealed. Some preliminary questions are raised which will be first considered.

Immediately after the order made by the trial court admitting the receivers as parties to the action, they presented a petition for the removal of the case to the United States court on the ground that the case became one of federal cognizance, such receivers being officers of the United States, and the matter in litigation involving property in the hands of such receivers. This application was denied, and, as we think, rightly so. The receivers came into the action not as necessary parties thereto, but simply as proper parties to maintain and defend the property rights which had been placed in their hands. They succeed to the interests of the railway company, but their rights in the case are no broader than the rights of the corporation itself. They take the suit as they find it, subject to the disabilities of the party whose interests they represent. Their presence raises no question of federal cognizance. Speckert v. German Nat. Bank, 98 Fed. 151, 38 C. C. A. 682;Gableman v. P. D. & E. Ry. Co., 179 U. S. 335, 21 Sup. Ct. 171, 45 L. Ed. 220. The judgment in the case was rendered in terms against the railroad company, and further provided that upon payment into court of the amount of damages awarded the exclusive use of the condemned premises should vest in the company for railroad purposes. The notice of appeal was entitled in the case giving the names of both the company and the receivers as defendants, and gave notice that the receivers appealed from the judgment “rendered by the circuit court of Kenosha county in the action above entitled, entered on the 30th day of November, 1909, in said court in favor of the plaintiff and against said defendants.” The undertaking accompanying the notice also described the judgment as one recovered against the receivers. Upon these facts the respondents now claim, first, that the receivers have no right of appeal; and, second, that they have not in fact taken an appeal.

Both contentions must be overruled. As before stated, the receivers were proper parties to the action. By their order of appointment they were required to take possession of the property of the defendant corporation, manage its business, and prosecute and defend all such actions as might be necessary or advisable for the proper protection of the property and the trust vested in them. It was plainly their duty to defend these proceedings, and just as plainly their duty to take an appeal from the judgment if, in the exercise of a reasonable and sound discretion, it seemed that prejudicial error had occurred, by reason of which the amount of the award had been increased. The strip in question had been taken possession of by the railroad company, and $50,000 had been paid into court by the company as damages, being the amount awarded by the commissioners. The rights of the company in the strip were valuable, and it was essential that those rights be protected by the receivers. As to the right of the receivers to appeal from the judgment, there can be no serious question. The general rule is that where interests have been acquired in the subject of the controversy by legal succession, such as the interests acquired by administrators, or assignees in bankruptcy, or receivers, the persons acquiring such interests may, on being made parties to the proceeding, prosecute an appeal from a judgment against the party whose interests they represent. Elliott, Appellate Procedure, §§ 133, 137.

As to the form of the notice and undertaking on the appeal there is doubtless something to be desired. The judgment was not described with exact legal accuracy in either paper; nevertheless there was no possibility of mistake, the action was correctly entitled, and the dates and amount of the judgment properly given. It was called in the notice a judgment against the “defendants,” and in the undertaking a judgment against the receivers, naming them in their official capacity. In legal effect the judgment might properly be said to be a judgment against the receivers in their official capacity, because while it did not bind them personally it was adverse to the interests of the trust which they represented, and were bound to protect and defend, and in this sense was a judgment against them. In any event there could be no question as to the judgment which was referred to in the appeal papers, and the verbal inaccuracy, if any there was in the notice and undertaking, cuts no figure.

We pass now to the merits of the appeal. The piece of land which has been condemned here is a strip 2.3 acres in extent, and is 100 feet wide, and 1,013 feet long north and south, running through a large automobile manufacturing plant; while it took no substantial buildings, it separated the principal buildings of the factory on the east from the testing track on the west and took space upon which a building had already been begun. The factory was situated in the outskirts of the city of Kenosha and there was vacant land to the west and to the north. The witnesses for the plaintiff who placed the damages at somewhere from $125,000 to $200,000, all testified that opportunity for expansion had much to do with the value of manufacturing plants and sites, and the testimony was further to the effect that by the taking of this right of way the opportunity of expanding the factory upon the premises owned by the plaintiffs on the west was very seriously impaired, if not practically destroyed. The plaintiff himself testified that after the condemnation proceedings were commenced he had purchased lands immediately north of his buildings and east of the right of way, comprising something less than 30 acres, at $1,100 to $1,200 per acre, and that he also purchased a block of land on the east of his factory for $24,200. Upon these premises so purchased he had erected additional factory buildings and thus expanded the plant. It was also admitted on the trial that at the time of the taking vacant land could be bought immediately north of the plaintiff's buildings for $1,100 to $1,200 per acre.

Mr. F. L. Mitchell, being called as a witness for the plaintiff, testified that, in his opinion, the plaintiff's plant was worth $500,000 before the taking of the strip in question and $350,000 to $375,000 immediately after the taking, and that opportunity for expansionhad much to do with the value. Upon cross-examination, Mr. Mitchell was asked the following question in several different forms and upon objection the evidence was excluded: “Q. Now, I desire to ask you whether the fact that to the north and south and east there were other available lands purchasable at approximately the market value of suburban lands--say, a thousand dollars, or thereabouts, an acre--would not make a material difference in the valuation that you would put upon this plant before and after the taking?”

The same question was also raised in a different form by the refusal of the court to give to the jury the following instructions which were requested by the defendant:

“(3) While you may not take into consideration the price, or the opportunity of acquiring adjoining land for any contemplated extension of the plant, in mitigation of damages, you may consider the same as bearing upon the market value of the plant; that is to say, the existing opportunity of acquiring land for additional buildings and for piling and storing lumber and other material may be considered by you, applying the evidence of such opportunity and of the cost of such additional land solely to the question of the decrease in the market or salable value of the remainder of the plant, and to aid you in weighing the opinion testimony of witnesses as to the lessening of the market value of the part not taken, by the taking of the strip.”

“(8) You may consider the expansion and enlargement of the plant since the taking and the manner in which the same has been accomplished as evidence of the capacity for such enlargement immediately after the taking, and the availability of particular portions of the tract for improvements incidental to such expansion, as bearing upon the question of the lessened value of the part not taken caused by the taking of the strip in question and the opinions of witnesses given thereon.”

“(12) In determining the diminution, if any, in market value of the properly not taken by the taking of the strip, if you determine...