N. Am. Realty Co. v. City of Milwaukee
| Decision Date | 06 April 1926 |
| Citation | 189 Wis. 585,208 N.W. 489 |
| Parties | NORTH AMERICA REALTY CO. v. CITY OF MILWAUKEE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; E. T. Fairchild, Judge.
Condemnation proceeding by the City of Milwaukee against the North America Realty Company. From an order and judgment denying taxation of certain costs, the North America Realty Company, as plaintiff, appeals. Affirmed.
Condemnation proceedings. The jury assessed the value of the premises condemned at $30,000, and plaintiff was allowed costs under section 2921, Stats., not exceeding $25, exclusive of disbursements, taxed in the sum of $210 costs and disbursements. Plaintiff sought to tax $833 for nine expert witnesses, ranging from $50 to $178 each, $225 fees of one appraisal company, $592 fees of another appraisal company, and $2,233 attorneys' fees. From an order and judgment denying the taxation of such items, it appealed.Hoyt, Bender, McIntyre & Hoyt, of Milwaukee (Clarence G. Ehrle, of Milwaukee, of counsel), for appellant.
John M. Niven, City Atty., and Mark A. Kline, Asst. City Atty., both of Milwaukee, for respondent.
Plaintiff bases his right to recover the items of expense set out in the statement of facts upon the constitutional provision that “property of no person shall be taken for public use without just compensation therefor.” Article 1, § 13, Const.
The argument runs that, since expenses have to be incurred in condemnation proceedings, such expenses must be recovered in addition to the award in order that “just compensation” for the land may be had. Practically, that is true. But it is equally true in nearly every other lawsuit. The prevailing party does not recoup his total expenses. He can tax only statutory costs, and they usually fall short of the actual costs of the litigant. In contemplation of law, however, statutory costs are full compensation, and when those are taxed in favor of the prevailing party, he is presumed to be made whole.
Plaintiff relies strongly upon the case of Stolze v. M. & L. W. R. Co., 88 N. W. 919, 113 Wis. 44, 90 Am. St. Rep. 833. In that case plaintiff's land was condemned for railway purposes, and a judgment with costs was entered. The railway company went into the hands of a receiver, and plaintiff attempted to collect his judgment against the bankrupt company, but failed. Judgment in his favor with costs was entered. Then the defendant succeeded to the rights of the bankrupt company, and plaintiff brought an equitable action to restrain it from using the land for railway purposes till the award with costs, interest, and the...
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