Murray Hill Land Co. v. Milwaukee Light, Heat & Traction Co.

• Decision Date: 24 October 1905
• Citation: 126 Wis. 14,104 N.W. 1003
• Court: Wisconsin Supreme Court
• Parties: MURRAY HILL LAND CO. v. MILWAUKEE LIGHT, HEAT & TRACTION CO.

126 Wis. 14

104 N.W. 1003

MURRAY HILL LAND CO.

v.MILWAUKEE LIGHT, HEAT & TRACTION CO.

Supreme Court of Wisconsin.

Oct. 24, 1905.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Appeal by the Murray Hill Land Company from an award in condemnation proceedings by the Milwaukee Light, Heat & Traction Company. From the judgment, the traction company appeals. Affirmed.

It appears from the record that December 23, 1901, the defendant traction company filed in the circuit court its verified petition, addressed to said court, for the condemnation of the lands therein described, for the purposes of acquiring, constructing, maintaining, and operating an electric street railway thereon; that the said petition, among other things, contained a description of the several pieces and parcels of land fronting and abutting upon said highway and therein sought to be condemned, “together with the names of the owners and persons interested in the same”; that among the lots so described are some 20 or more of which the plaintiff in this action, the Murray Hill Land Company, is therein alleged to be “the owner” thereof. The defendant therein prayed that it might be determined that the defendant had the right to take the said premises so described, under and by virtue of the power of eminent domain, for the uses and purposes therein mentioned; that three disinterested and competent freeholders be appointed as “commissioners to ascertain and appraise the compensation to be made to the owners or persons interested in said premises for the taking of said premises by” the “petitioner for the uses and purposes” therein “mentioned; and that the time and place of the first meeting of such commissioners be fixed, and that such other orders and proceedings be had in the premises” as might “be necessary and proper.” Thereupon three such commissioners were duly appointed by the circuit court, and on May 19, 1902, they filed their award of damages in writing in said court, and stated therein that “the aggregate amount of the award made for lots owned by the plaintiff herein” was $1,773.24, distributed upon 19 several lots therein described. June 18, 1902, the defendant company appealed to the circuit court “from those certain awards of the commissioners” wherein and whereby they “fixed and determined the amount of compensation to be paid to Murray Hill Land Company as owner” of the 19 lots thus described, “in consequence of the taking and appropriating by said company of a certain easement described” in said petition. Previously, and on June 9, 1902, the plaintiff had appealed to the circuit court from so much of said award as related to such lots. Within 60 days from the filing of said award the defendant paid into court the amount thereof ($1,773.24) so awarded to the plaintiff, which sum the plaintiff, without prejudice to its said appeal, withdrew from the court November 27, 1903. By the agreement of the parties the said two appeals relating to said lots were tried together before a jury, commencing November 18, 1904, and continuing until November 23, 1904. At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed its damages at $5,666, together with interest thereon from May 19, 1902; and thereupon it was ordered by the circuit court that judgment be rendered thereon in favor of the plaintiff and against the defendant for $5,666, with interest thereon from May 19, 1902, to November 27, 1903, and interest on $3,892.72 thereof from November 27, 1903, to the entry of such order, and for the costs of the action. December 22, 1904, the defendant moved the court, upon the records, files, and proceedings therein, and upon the minutes of the presiding judge, to vacate and set aside such order for judgment, and said verdict of the jury, as unsupported by and contrary to the evidence, and to grant judgment in favor of the defendant and against the plaintiff on the uncontradicted evidence, which motion was denied by the court December 23, 1904. Thereupon, and on December 24, 1904, and on motion of the plaintiff, it was ordered and adjudged that the plaintiff herein do have and recover of and from the defendant the sum of $6,438.97 damages and $75.71 costs and disbursements in the action, amounting in the aggregate to $6,514.68; and it was therein further ordered and adjudged that the sum of $1,773.24 so paid into court by the defendant, and withdrawn by the plaintiff as stated, be applied in part payment of said judgment. From such judgment the defendant brings this appeal.Clarke M. Rosecrantz and Spooner & Rosecrantz, for appellant.

Otto R. Hansen (W. J. Turner, of counsel), for respondent.

CASSODAY, C. J. (after stating the facts).

At the close of the testimony the defendant requested the court to direct the jury to return a verdict in its favor, for the reason that nothing had been shown to warrant them in rendering a verdict in favor of the plaintiff, which request was denied by the court. The court then submitted to counsel a form of verdict merely calling upon the jury to assess the plaintiff's damages, which form of verdict counsel conceded to be correct; but counsel for the defendant expressly stated that the defendant did not consent nor concede that there was anything in the case for the jury. Such requests and claims of counsel were based upon the contention now made that on the trial of this action in the circuit court it was incumbent upon the plaintiff to prove title to the premises in question; and that the plaintiff had failed to make such proof. On the part of the plaintiff, it is claimed, in effect, that the petition for condemnation is a part of the record in this action, and that in such petition the defendant expressly alleged that the “Murray Hill Land Company” was the “owner” of such premises, and prayed the court to determine the defendant's right to take the premises so described, under and by virtue of the power of eminent domain, for the uses and purposes therein mentioned; that commissioners be appointed to ascertain and appraise the compensation to be made to the plaintiff, as such owner, for the taking of such premises; and that the court, in effect, determined such ownership prior to the trial of this action. The petition filed “for the purpose of acquiring such title” appears to have been signed and verified, and stated “the names of the owners and parties interested” in the premises therein sought to be condemned, and such other facts as were required by the statute. Section 1846, Rev. St. 1898. “The filing of such petition,” as stated in that section, was “the commencement of a suit in said court” against the several landowners mentioned therein, including the plaintiff in this action. Id. “Upon the filing of such petition the said court or judge thereof” was therein required to give notice, as therein prescribed, to the several landowners and persons interested therein as mentioned in such petition. The filing of such petition has frequently been held to be essential to give the court or judge jurisdiction to appoint such commissioners to ascertain and appraise the compensation to be made to such landowners. Winnebago Furniture Mfg. Co. v. Wisconsin Midland R. Co., 81 Wis. 389, 51 N. W. 576; C., M. & St. P. Ry. Co. v. Richardson, 86 Wis. 154, 56 N. W. 741;Matter of M. T. Co., 111 N. Y. 588, 19 N. E. 645;R. R. Co. v. Robinson, 133 N. Y. 242, 30 N. E. 1008. “On presenting such petition * * * with proof of publication of notice,” and on hearing the parties, the court was required to “determine whether the railroad corporation” was “entitled to take the whole or any part of the land sought to be acquired,” before appointing commissioners. Section 1847, Rev. St. 1898. The statute required the report of the commissioners, including their award, to be filed in the office of the clerk of the court, and by him recorded “in the judgment book of such court.” Sections 1848, 1850, Rev. St. 1898. The statute also provided in effect that at any time thereafter the corporation might pay to the owners of the lands so taken, or deposit with such clerk, the amounts so awarded, and thereupon enter upon and take and use the land for the purposes for which it was condemned. Id. Of course, the damages so awarded were open to modification on appeal. Sections 1849, 1850, 1851, Rev. St. 1898. Obviously, the report and award of the commissioners constituted a part of the records in the case; and we are constrained to hold that such petition for condemnation was also a part of the records in the case.

2. Nevertheless it is contended by counsel for the defendant that the appeal from the award to the circuit court opened up the whole case for trial in that court, and hence that it was incumbent upon the plaintiff to prove title to the premises or go out of court. In support of such contention, counsel rely upon certain early decisions of this court. There is some plausibility in the contention. In the leading case so relied upon the plaintiff appealed from the award of the commissioners, and increased his damages in the circuit court; and from the judgment entered therein the railway company appealed to this court. The trial court refused to charge the jury “that the plaintiff was not entitled to recover anything for damages to or for the lands themselves to which he had shown no title, * * * but instructed the jury that possession and occupancy under color of title were sufficient for the plaintiff to recover.” Robbins v. M. & H. R. Co., 6 Wis. 636, 643, 644. Such rulings were there held to be erroneous; and Mr. Justice Smith, speaking for the court in respect to them, there said: “The party from whom it [land] is taken can, obviously, demand payment for no greater interest than he may have had therein. To enable the plaintiff to recover at all, he must show some title. If it be a bare possession or occupancy, he certainly cannot demand and recover payment...