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

• Decision Date: 20 June 1901
• Court: Wisconsin Supreme Court
• Parties: LENZ v. CHICAGO & N. W. RY. CO.

111 Wis. 198

86 N.W. 607

LENZ

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

Supreme Court of Wisconsin.

June 20, 1901.

Appeal from circuit court, Manitowoc county; George Clementson, Judge.

Condemnation proceedings by Jacob Lenz against the Chicago & Northwestern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This was a proceeding instituted by Jacob Lenz for condemnation, commenced at the same time, and in all respects similar to, that considered in Kuhl v. Railway Co., 101 Wis. 42, 77 N. W. 155, the petition being substantially the same, as also the findings of fact and the order of the circuit court appointing commissioners to fix the damages. In this case, however, amended answer was interposed,denying the allegation that the appellant, in 1893, assumed and agreed to pay the liability of its grantor, the Milwaukee, Lake Shore & Western Railway Company (hereafter called “Lake Shore”) to this petitioner. Certain of the findings are excepted to as not sustained by the evidence, which is brought into the record by bill of exceptions. The facts as they appear are that in 1890 the Lake Shore, under authority of an ordinance of the city of Manitowoc, accompanied by a due map of location, filed with the city clerk, constructed a track along the north half of Quay street, in that city, opposite the lots of the petitioner, which were on the south side of the street; that petitioner had taken no steps to prevent such construction, or recover compensation therefor. In 1893 the Lake Shore conveyed all of its railroad property to the Chicago & Northwestern Railway Company (hereafter called the “Northwestern”) by deed, which recited that the conveyance was in consideration of $100 “and the assumption by the party of the second part (grantee) of all the existing debts, liabilities, and obligations of said party of the first part.” Thenceforward the Northwestern has owned and operated the track on said Quay street. This proceeding was instituted May 21, 1897, at the time with some 19 others, including that of Kuhl above mentioned; the attorneys for the several plaintiffs acting in association with each other. The appellant, after having demurred and answered, made objection upon the trial by moving to dismiss the proceeding on account of the insufficiency of the petition, and also an objection to any evidence in the nature of a demurrer ore tenus. At the close of the trial the court found facts substantially as above stated, and also that by the deed above mentioned the Northwestern assumed, and promised, and agreed to pay all the then existing debts, liabilities, and obligations of the Lake Shore; that the location, maintenance, and operation of the railroad materially interfered with the usefulness of the street, and materially injured and damaged the property of the petitioner; and made an order reciting that the railroad company had laid down, maintained, and operated a railroad on the north half of Quay street, in front of and passing the premises of the petitioner, together with other facts, and determining that a case for condemnation existed, and appointing commissioners,--from which this appeal is brought.

Nash & Nash and Fish, Carey, Upham & Black (Edward M. Hyzer, of counsel), for appellant.

O'Conner, Hammel & Schmitz and G. G. Sedgwick, for respondent.

DODGE, J. (after stating the facts).

The rights of parties similarly situated with those now before us were considered by this court in Kuhl v. Railway Co., 101 Wis. 42, 77 N. W. 155, which case, the respondent contends, is conclusive, as res adjudicata, upon the present. That contention, of course, cannot be sustained. The parties are not the same, and, as a decision in that proceeding would not have been conclusive against this petitioner, it cannot be conclusive in his favor. So far, however, as the questions now presented are the same as those considered and disposed of in that case, the decision of the court is authoritative upon the rule of stare decisis, unless we must now determine to overrule it.

The first position argued by appellant is that an abutting lot owner upon the opposite side of the street has no right to institute condemnation proceedings in reliance upon section 1852, Rev. St. 1898, for the reason that section 1296a, Rev. St. 1898, giving to the lot owner right to compensation, gives right of condemnation only to the railroad company. This question was squarely presented by the briefs of opposing parties, and was fully decided in favor of the petitioner in the Kuhl Case, and we see no reason to hesitate in yielding to that decision full authority now. That objection to the present proceeding must, therefore, be overruled.

It was further decided in the Kuhl Case that, if the Northwestern, as a consideration for the transfer to it from the Lake Shore, assumed and promised and agreed to pay all the debts and obligations of said Lake Shore, and all just claims against it,--as the court found in that case,--then it was liable upon that contract to the petitioner in a proceeding under section 1852, Rev. St. 1898, and that the statute of limitations upon such right of recovery commenced to run only upon the making of the deed containing such assumption of liabilities. Appellant now assails the holding that original liability could thus be created against the Northwestern. It also contends that the evidence, which is now before us, does not support the finding. The first of these contentions--that which assails the proposition of law decided in the Kuhl Case--we have no hesitation in overruling. We are entirely satisfied with the conclusion reached in that case. The second contention, however, was not ruled upon in that case, and must be considered. The deed merely recites, as one of its considerations, assumption by the Northwestern of all the existing debts, liabilities, and obligations of the Lake Shore. There is no other evidence of any agreement or assumption. Does that support the finding? Appellant contends not, for several reasons: First, that the word “assumption” is not equivalent to an agreement to pay such liabilities; secondly, that, if it is, there is nothing to support an inference of intention in the parties that the agreement was for the benefit of the petitioner, so as to give him direct right of action thereon. The contention that an agreement to assume a debt or liability is not an agreement to pay it is supported by no argument beyond the fact that in nearly all the cases which have come before this court the phrase used has been “assumes and agrees to pay.” The extent, therefore, to which such argument goes, is to establish that we have not, in those cases, been called on to decide the effect of “assumption” alone. Other courts, however, have not been so exempt. Industry of respondent's counsel has discovered numerous instances of the use of the word “assume,” in all of which it has been construed to include the duty of payment, if the assumption be of a debt, and of payment to the creditor. Braman v. Dowse, 12 Cush. 227;Locke v. Homer, 131 Mass. 93, 41 Am. Rep. 199;Schley v. Fryer, 100 N. Y. 71, 2 N. E. 280;Stout v. Folger, 34 Iowa, 71, 11 Am. Rep. 138; Sparkman v. Gove, 44 N. J. Law, 252; Mills v. Dow's Adm'r, 133 U. S. 423, 10 Sup. Ct. 413, 33 L. Ed. 717. No decision has been cited in contradiction of these holdings. They seem to us entirely correct in principle and reason upon the subject now under consideration. “To assume” is defined by the lexicographers as “to take upon one's self,” “to undertake,” “to adopt.” Obviously, to take upon one's self or to adopt the obligation or the liability of another is to put one's self in the place of that other as to such obligation or liability, to become bound as such other was bound. An assumption is broader than a promise to pay, as “liability” or “obligation” is broader than “money debt” in significance; but the broader term naturally and necessarily includes the narrower, in the absence of exception. As the liabilities and obligations of the Lake Shore, though covering other things, clearly included...