Manitowoc Clay Prod. Co. v. Manitowoc, G. B. & N. W. Ry. Co.

• Decision Date: 10 March 1908
• Citation: 115 N.W. 390,135 Wis. 94
• Court: Wisconsin Supreme Court
• Parties: MANITOWOC CLAY PRODUCT CO. v. MANITOWOC, G. B. & N. W. RY. CO.

135 Wis. 94

115 N.W. 390

MANITOWOC CLAY PRODUCT CO.

v.MANITOWOC, G. B. & N. W. RY. CO.

Supreme Court of Wisconsin.

March 10, 1908.

Appeal from Circuit Court, Manitowoc County; Michael Kirwan, Judge.

Condemnation proceedings by the Manitowoc, Green Bay & Northwestern Railway Company to acquire a right of way across lands of the Manitowoc Clay Product Company. From the award of the commissioners both parties appealed, and the appeals were consolidated for hearing in the circuit court, the owner being made plaintiff, and the railroad company defendant. From a judgment for plaintiff, both parties appeal. Affirmed on the appeal and on the cross-appeal.

This is an appeal and cross-appeal from a judgment entered in condemnation proceedings begun by the defendant in the circuit court for Manitowoc county. From the award of the commissioners both parties appealed, and the appeals were consolidated for the purpose of trial. At the time of the commencement of the condemnation proceedings the plaintiff was in possession of the premises containing about 14 acres under a written contract with the Wisconsin Central Railway Company and the Manitowoc Land Improvement Company, the latter being a holding company for the former. For brevity this contract will be called a “lease,” and the Wisconsin Central Railway Company the “ lessor.” The plaintiff thereby acquired the land for a term of years for the purpose of manufacturing brick from the clay found upon the premises. It erected a plant on the land valued at about $30,000, and was engaged in the manufacture of large quantities of brick. The land was bounded on the east by the Manitowoc river, on the north, northwest, and west by the tracks of the Wisconsin Central Railway Company, and on the south by private property. The right of way acquired by the defendant was a strip 100 feet wide running north and south across plaintiff's premises, and separating them into nearly equal parts; the manufacturing plant being on the east side thereof, and the larger portion of the brick clay on the west. The plaintiff obtained the clay from the breast of a cut about 20 feet deep in which the Wisconsin Central Railway was constructed. The clay was hauled to the manufacturing plant on tram cars across the land condemned for a right of way. The defendant's railroad was built upon the top of the bank, and crossed the Wisconsin Central Railway about 25 feet above the tracks at the place of crossing. Without a suitable crossing over or under the defendant's right of way, the plaintiff would thus be cut off from access to the larger portion of the clay land, which it could only use profitably in connection with this manufacturing plant.

Upon the trial the defendant tendered the plaintiff a conveyance of a crossing or subway, which the plaintiff rejected, claiming the right to recover damages in view of the separation of the premises without any crossing. The tender was admitted, and also testimony showing the damages arising from taking the plaintiff's property with the crossing and the amount without the crossing. A special verdict was submitted for the assessment of damages on each of these grounds. The verdict fixed the plaintiff's damages at $66,900, if the plaintiff under the law or under the tender made by the defendant was not entitled to or obliged to take a suitable and convenient subway or undercrossing to connect the eastern with the western portion of its remaining premises, and fixed the plaintiff's damages at $13,800, if the plaintiff was entitled to or was obliged to take such crossing. The court adjudged that the plaintiff was bound to accept the tender of a crossing upon the trial of the case, and entered judgment unconditional for $13,800, and for $53,100 conditional upon the neglect or failure of the defendant to construct a subway or undercrossing within a specified time after the plaintiff had served notice of its election to accept the tender of the crossing made by the defendant. The plaintiff on its appeal assigns as error the refusal of the court to render judgment unconditional for the sum of $66,900, and for interest thereon, and costs.

The defendant appeals from the entire judgment, and a further statement is requiredin that connection. The defendant held the land in question under a contract, which contained a clause allowing the lessor to resume possession of any portion of the premises after six months' notice upon certain conditions, which the jury found had not been complied with. After the defendant company had staked out its proposed line across this land the general manager of the plaintiff was required by the Wisconsin Central Railway Company to surrender the right of way to the defendant, and after his refusal the six months' notice was given by the Wisconsin Central Railway Company of its purpose to resume under the lease the strip of land in question. Within three months thereafter, and before the time had arrived to demand possession under the terms of the lease, the Wisconsin Central Railway quitclaimed this tract to the defendant, who took title with full knowledge of the rights of the parties. After this conveyance the Wisconsin Central Railway took no steps to meet the requirements of the contract by offering other land in place of that taken until about the time when the six months' period had expired. Fourteen days prior to the expiration of the six months' period the petition for condemnation was filed. At that time the manager of the defendant went to Milwaukee to ascertain the lessor's position with respect to the condemnation proceedings, and was then informed that it would have nothing to do with it. On the day before the six months expired, and 14 days after the petition for condemnation had been filed, and after the necessity for the taking had been determined, and the commissioners appointed, the defendant company by its attorney tendered to the plaintiff an instrument executed by the officers of the lessor of an equal area of clay land selected by said lessor in lieu of that taken for the right of way. The plaintiff refused to accept this offer, and no further steps were taken until the trial. Upon the trial the plaintiff claimed that the deed did not in fact contain an equal area of clay land, and did not therefore constitute a compliance with the condition of resumption. Whereupon a second deed of land in lieu of that resumed was tendered to the plaintiff, and was refused as not having been made in compliance with the contract. The question was submitted by the court to the jury. The jury found that the tract of land which was tendered to the plaintiff in exchange for the strip taken by the defendant for its right of way did not contain as much clay suitable for brick-making purposes as contained in the strip taken by the defendant.

At the close of the testimony the defendant moved for a direction of verdict in its favor, or for nominal damages. After the verdict was returned the defendant moved to strike out the answer of the jury to the question which found that the land offered in exchange did not contain as much clay suitable for brick-making purposes as the strip taken for the right of way. Defendant also moved for judgment notwithstanding the verdict. The errors assigned by defendant relate to the rulings of the court on these motions.

Hougen & Brady (P. H. Martin, of counsel), for plaintiff.

Edward M. Hyzer, for defendant.

BASHFORD, J. (after stating the facts as above).

The judgment of the circuit court awards to the plaintiff as damages for taking the land by the defendant for its right of way the sum of $66,900, besides interest and costs, but further adjudges that if the defendant within a specified time furnishes the plaintiff with a crossing the collection of $53,100 of said judgment shall be perpetually stayed. It results, therefore, that if the defendant furnishes the plaintiff with a crossing, and pays the plaintiff the sum of $13,800, with interest and costs, it will be discharged from further liability. The refusal of the court to render an unconditional judgment for $66,900 is the ruling complained of on plaintiff's appeal. The verdict of the jury establishes beyond controversy that the crossing provided for is practicable, and that it will greatly lessen the amount of plaintiff's damages by reason of the taking of a right of way across its property for the defendant's railway. There is no contention that the question was not submitted to the jury under proper instructions, or that the estimate of damages is not just and reasonable.

Counsel for plaintiff stand upon the proposition that the law imposes no obligation upon the defendant to furnish a crossing upon this property, and hence there is no obligation resting upon the defendant to accept a crossing in reduction of the amount of damages. Counsel for defendant assert that the plaintiff was lawfully entitled to a crossing, and that, as in all condemnation proceedings, the award of damages must be made in view of the legal situation. In this connection it is urged upon its behalf that section 1810, St. 1898, imposes upon the defendant the duty of constructing and maintaining upon plaintiff's property a suitable and convenient crossing. If that is the proper construction of this section, it is decisive of the controversy. The material part of the section is as follows: “Every railroad corporation operating any railroad shall erect and maintain on both sides of any portion of its road (depot grounds excepted) good and sufficient fences of the height of four and a half feet, with openings or gates or bars therein, and suitable and convenient farm crossings of the road for the use of the occupants of the land adjoining, and shall construct and maintain cattle guards at all highway crossings and connect their fences therewith to prevent cattle and other domestic animals from going on such railroad.” The railroad is here requiredto maintain “suitable...