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

• Decision Date: 01 November 1898
• Citation: 101 Wis. 42,77 N.W. 155
• Court: Wisconsin Supreme Court
• Parties: KUHL v. CHICAGO & N. W. RY. CO.

101 Wis. 42

77 N.W. 155

KUHL

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

Supreme Court of Wisconsin.

Nov. 1, 1898.

Syllabus by the Judge.

1. In the absence of a statute requiring the payment of damages to property where no part of it is taken, as a condition of the exercise of the right of eminent domain to acquire property for public use, such injuries are deemed purely consequential and damnum absque injuria.

2. Chapter 255, Laws 1889, to the effect that opposite owners of lands abutting on a street or highway shall have an equal right to an unobstructed street for the full width thereof, and prohibiting its obstruction so as to materially injure its use as a highway, or injure abutting property on either side, without compensation for the damages thereby caused, does not vest any interest or estate in the land in an abutting owner not possessed by him before, but gives to such owner, in case of a taking of part of the street for railway purposes, the right to recover consequential damages accruing thereby to his land.

3. The construction of a railroad in a street by the consent of an abutting owner of property, either expressly given or by not objecting, gives the abutting owner an immediate right of action for the damages caused to his land abutting on the street without reference to the side on which the railroad track may be placed, and the statute of limitations immediately commences running against such claim.

4. If a railroad be constructed across, or in front of, the land of another without objection on his part, he is deemed to have relinquished all rights of property affected thereby, and accepted in lieu thereof the constitutional or statutory right to compensation for the lands taken, and the damages to lands not taken allowed by law, with the remedy provided by statute for determining the amount of such compensation or damages, and the recovery thereof. The claim for compensation is a mere chose in action, assignable and enforceable in all respects as any other thing in action, and independent of the subsequent ownership of the land. It does not constitute a right in land, but a right to recover the value of the land surrendered for public use, or damages accruing thereby to lands not taken, which are recoverable by law.

5. Whether the claim be for lands taken or damages to lands not taken, subdivision 3, § 4222, Rev. St., limiting the commencement of actions to six years, applies; and where the damages recoverable are dependent wholly on the statute, as in case of damages to lands abutting on a street, no part of which lands are taken, subdivision 4 of such section applies.

6. If a railroad corporation constructs its line of road without making compensation for lands taken therefor, and subsequently conveys its property to another railroad corporation without such other assuming and agreeing to pay the liability of the vendor corporation for the taking of such land, the statute of limitations runs on the claim from the time of such taking. But if the vendee assumes and agrees to pay the liabilities of the vendor, that constitutes a new obligation for the benefit of the claimant for compensation, and the statute of limitations runs on such obligation from the time of the agreement between the vendor and vendee.

Appeal from circuit court, Manitowoc county; N. S. Gilson, Judge.

Proceedings by Michael Kuhl against the Chicago & Northwestern Railway Company, under the statute, to obtain damages to property on one side of a public street, growing out of the location, construction and maintenance of a railroad track on the other side of such street. In 1890 the Milwaukee, Lake Shore & Western Railway Company, a duly-organized railway corporation, pursuant to authority duly granted by the city of Manitowoc, laid out, established and constructed, and thereafter maintained continuously till August 19, 1893, a railroad on the opposite side of a street in said city from that on which plaintiff's property was located. On the day last named, said corporation conveyed its property to the Chicago & Northwestern Railway Company, the grantee as a part of the consideration assuming and agreeing to pay the liabilities of the grantor. The last-named company maintained and operated the road continuously up to the commencement of these proceedings, and claims the right to continue to do so permanently. Plaintiff was never compensated for the injury to his property growing out of the construction of the road, nor had any proceedings been instituted by either party to have the damages appraised before this suit was commenced, nor did plaintiff ever waive his right to such damages. The petition of the plaintiff for the appointment of commissioners was regular in form. The defendant answered the petition, pleading, among other things, section 4222, Rev. St., as a bar to any right on plaintiff's part, on the ground that liability to compensate him for the damages claimed accrued more than six years before the filing of the petition. The issue was determined by the court and resulted in an order as prayed for, in which were findings of fact in accordance with the foregoing, and further that the establishment of the railroad constituted a taking of lands of abutting owners on both sides of the street, and that plaintiff was entitled to have compensation for the injury done to his land and to have commissioners appointed to appraise and ascertain the same; and also the damages of all other lot owners similarly situated. Due exceptions were taken to the findings. The appeal is from the order. Affirmed.

Nash & Nash and Fish, Cary, Upham & Black, for appellant.

A. J. Schmitz, Michael Kirwan, and G. G. Sedgwick, for respondent.

MARSHALL, J. (after stating the facts).

The questions discussed by counsel for the respective parties, and otherwise raised on this appeal, are as follows: (1) What property right, if any, is given by chapter 255, Laws 1889, to the owner of lands abutting on a public street or highway, which can be enforced against a railway company by reason of the construction and maintenance of its line of road on the opposite side of the street? (2) When does the liability accrue to the lot owner by the circumstances indicated in the first proposition? (3) What provision of the statute of limitations applies as regards the enforcement of such liability? (4) Did the defendant properly plead the statute of limitations in this case? (5) When did the statute commence to run as to the defendant?

The appeal might properly be disposed of without deciding any of the propositions named except the last, or, for the purposes of the appeal, they might be considered unfavorably to the appellant; but as they are presented for decision and are properly in the case from one view of it, and their decision seems to be required in order to clear up some previous conflicts on the subject, and to settle firmly and plainly the law under existing statutes, we have concluded to meet and decide each of the propositions suggested.

1. It is insisted by the learned counsel for appellant that the owner of real estate on one side of a street has no interest in the lands on the other; that is, has no property right in the land itself; that in taking the land on one side of a street for railway purposes, there is no taking of an interest in land incident to the ownership of land on the other, but a mere interference with a right, causing consequential damages to the latter property, which are recoverable.

Independent of some statute on the subject, mere consequential damages caused to one tract of land by the taking of another, or some part of it, for public purposes, are not recoverable. Such damages are not property within the constitutional guaranty of security against the taking of property for public use without compensation. True, there are some rights in, or appurtenant to, land, which may be impaired or taken away by the use made of land adjoining, which are subjects of protection by the rules of the common law, and such impairment or taking is an appropriation of property within the meaning of the constitution. But aside from that the only taking in a constitutional sense is a physical appropriation of the thing itself. Damages caused to property, no part of which is taken, are merely consequential and damnum absque injuria, in the absence of legislation imposing the obligation to indemnify therefor as a condition of the right to exercise the sovereignty of the state for the purposes of acquiring property for public use. So, prior to the statute on which respondent relies, the lawful construction of a railroad in a public street, on one side of it, in such a manner as not to interfere with the right of access to and from property on the other side, though resulting in serious injury to its beneficial use, caused no liability to the taker to compensate therefor. It did not take or appropriate any property or right of property in the land not physically taken or encroached upon for which an action would lie, hence did not take property in a constitutional sense. Consequential injury to the property of one, that arises from the reasonable use of property of another, is irremediable, because it is an injury without wrong. It would not be actionable if caused by a private individual, and the situation is not changed if the actor be a private corporation, proceeding lawfully.

It is a mistake to speak of a right appurtenant to land and merely incidental to ownership, which is the subject of statutory protection against interference by the use to which adjoining land may be put, as an easement, or property right in such adjoining land. It is a mere right to be protected against unreasonable use of the adjoining land. An invasion of that right is not the appropriation of an estate in such adjoining land, belonging to the owner of lands affected injuriously by the unreasonable use of the former, but is an interference with and total or partial...