Perszyk v. Milwaukee Elec. Ry. & Light Co.

• Decision Date: 01 May 1934
• Citation: 215 Wis. 233,254 N.W. 753
• Parties: PERSZYK ET AL. v. MILWAUKEE ELECTRIC RY. & LIGHT CO. (TWO CASES).
• Court: Wisconsin Supreme Court

215 Wis. 233

254 N.W. 753

PERSZYK ET AL.

v.MILWAUKEE ELECTRIC RY. & LIGHT CO. (TWO CASES).^a1

Supreme Court of Wisconsin.

May 1, 1934.

Appeals from an interlocutory and from a final judgment of the Circuit Court for Ozaukee County; E. B. Belden, Circuit Judge.

Condemnation proceeding between Anna Perszyk and another, designated as plaintiffs, and the Milwaukee Electric Railway & Light Company, designated as defendant. Judgment for plaintiffs, and defendant appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

Condemnation proceedings commenced by the defendant and appellant, the Milwaukee Electric Railway & Light Company, on a petition in which it alleged, in connection with other essential matters, that it “brings this proceeding pursuant to the provisions of section 32.15 of the Wisconsin Statutes in order that the petitioner's title to the premises hereinafter described may be freed from such defects as exist by reason of the claims of Anna Perszyk and Mamie Perszyk.” The court duly determined that it was necessary that the petitioner acquire by condemnation all rights or fractional interests of Anna Perszykand Mamie Perszyk in the premises for the purpose of using the same for public use as petitioner intends, in good faith, to do. Three commissioners were appointed to appraise the interests of Anna Perszyk and Mamie Perszyk in the property, and, upon the commissioners filing their report and award, Anna Perszyk, and Mamie Perszyk, and also the Milwaukee Electric Railway & Light Company, filed notices of appeal to the circuit court.

The issues raised on those appeals in respect to the title of the property were submitted to a jury for a special verdict, but subsequently the court considered the jury's findings as merely advisory, and made its own findings, on which an interlocutory judgment was entered in favor of the plaintiffs upon those issues. Thereupon there was a jury trial of the issues raised on the appeals in respect to damages, but the Perszyks did not attend the trial or co-operate with their attorneys by providing the necessary funds for procuring the attendance of witnesses to testify as to the value of the property. The verdict was based solely on testimony produced by the Milwaukee Electric Railway & Light Company, and judgment was entered thereon in favor of each of the Perszyks for $962.70 and costs. The Milwaukee Electric Railway & Light Company appealed from both judgments.

Shaw, Muskat & Paulsen, of Milwaukee (Wm. F. Schanen, of Milwaukee, of counsel), for appellant.

Quarles, Spence & Quarles, of Milwaukee (Howard T. Foulkes, of Milwaukee, of counsel), for respondents.

FRITZ, Justice.

The questions on this appeal are in relation to the title claimed by Anna and Mamie Perszyk (hereinafter called the plaintiffs) to the land which the Milwaukee Electric Railway & Light Company (hereinafter called the electric company) petitioned to acquire by condemnation. That title was involved in an action by Wanta et al. v. Perszyk et al., in which it was finally adjudged, pursuant to the decision and mandate of this court, reported in 207 Wis. 282, 240 N. W. 183, 241 N. W. 377, that each of the plaintiffs herein, as a child and heir of Teofil Potrykus, deceased, was entitled to an undivided one-third share and interest in that land. The chain of title upon which the plaintiffs rely, as well as the alleged defects therein and the facts in relation thereto, are stated in connection with that former decision. A restatement thereof in detail is unnecessary. It suffices to note that the plaintiffs claim that their father, Teofil Potrykus, was the owner of the land when he died, intestate, on August 17, 1918; that, on the one hand, he acquired the title in fee, subject only to a life estate vesting in John Schramka as a tenant by curtesy, by virtue of a deed executed on November 27, 1916, by the six children and heirs at law of Marcianna Schramka, in whom the title vested up to the time that she died intestate, in June, 1912, survived by her six children and her husband John Schramka, who thereafter, as a tenant by curtesy, continued in possession of the land until he died in May, 1927; and that, on the other hand, Teofil Potrykus acquired title on August 22, 1916, by virtue of a deed executed by William Ahlhauser, to whom the tax title had been conveyed by a tax deed executed on August 21, 1916, upon a tax certificate sold to him in May, 1913, upon John Schramka's failure as tenant by curtesy to pay the taxes for 1912.

[1] At the outset the plaintiffs contend that, inasmuch as the electric company instituted the condemnation proceedings, which resulted in the award and appeal therefrom involved herein, it cannot question, but is bound to recognize, the right, title, and interest of the plaintiffs in the property condemned. That contention is based upon the statement in Skalicky v. Friendship E. L. & P. Co., 193 Wis. 395, 214 N. W. 388, 390, that “when one seeks to take, by right of eminent domain, another's property, and in the petition recites, as must be done, title in, and ownership by, his adversary, such taker is thereafter bound by such expressed recognition of title, and cannot afterwards be heard to assert to the contrary, nor compel the one so recognized as owner to prove or defend his title.”

However, that rule is not applicable in this action because the electric company expressly alleged in its petition that it instituted the condemnation proceedings pursuant to the provisions of section 32.15, Stats., in order that its title may be freed from such defects as exist by reason of the claims of Anna and Mamie Perszyk. That section, 32.15, Stats., expressly authorizes perfecting the title to property which a person having the power to acquire property by condemnation seeks to acquire, “if such title is defective,” and provides that “such person may proceed to acquire or perfect such title in the manner provided in this chapter.”

[2]The plaintiffs also contend that, as the electric company had knowledge of the pendency of the action of Wanta v. Perszyk, supra, and of the defect in the title which was litigated in that action, it is bound by the final decision and judgment therein. The consideration of that contention, which was sustained by the trial court, necessitates noting the following additional facts:

On July 24, 1929, the electric company, in consideration of the payment of $1,000, acquired an option from the heirs of Marcianna and John Schramka for the purchase of the land in suit for $31,000; and on October 24, 1929, that option, in consideration of the payment of another thousand dollars, was extended to March 24, 1930. On March 1, 1930, the electric company accepted that option in writing, and demanded an abstract showing a merchantable title. On March 28, 1930, the electric company was informed by its attorneys that there was an outstanding defect in the title, because of which an action to quiet title with Teofil Potrykus and his wife, Katie Potrykus, as defendants, would have to be brought. On April 17, 1930, the electric company paid $15,000 on account of the purchase price to the Schramka heirs and received from them a written receipt which required them to prosecute an action to quiet title, and which gave the electric company possession of the land and the right to remove buildings therefrom. In the meantime, in October, 1929, the electric company had been permitted to enter upon the land to make surveys, since March, 1930, one of its crew had occupied a cottage, and on April 17, 1930, it commenced constructing a power plant thereon. On May 15, 1930, the Schramka heirs, on a complaint verified April 17, 1930, commenced an action to quiet title; and on June 30, 1930, they commenced a second action for that purpose. In that litigation Anna and Mamie Perszyk, the plaintiffs herein, answered, and also filed cross-complaints, in which they prayed to have title declared and quieted in them, with the result that judgment was ultimately entered in their favor, in accordance with the mandate of this court in Wanta v. Perszyk, supra. However, no lis pendens was filed in that litigation by any of the plaintiffs therein, or by the plaintiffs herein, in respect to their cross-complaints in that litigation. The judgment, as first entered in that litigation on December 16, 1930, was adverse to the claims of Anna and Mamie Perszyk, but nevertheless the electric company was advised by its attorneys, on December 24, 1930, not to pay the balance of the purchase price to the Schramka heirs until after the time to appeal from that judgment expired on December 16, 1931. However, the electric company, on January 3, 1931, paid that balance, with the exception of $500, to the Schramka heirs on delivery of their deed to the land, and an agreement that, if an appeal was taken from that judgment, the electric company could furnish legal counsel to consult with the attorney retained by the Schramka heirs. Subsequently an appeal was taken and prosecuted from that judgment, and it was ordered reversed by a mandate filed December 11, 1931. The electric company's attorneys were not consulted by the attorney for the Schramka heirs in relation to that appeal until after December 11, 1931, when counsel for the electric company participated with the attorney for the Schramka heirs in obtaining affidavits, which were filed on a motion for a rehearing which this court denied.

In the action now at bar the trial court found that although no lis pendens was ever filed by any party in the action to quiet title, the electric company at all times, prior and subsequent to the institution of that action, had full knowledge and information in regard to the pendency thereof; and the court concluded that the electric company was bound by the final decision and judgment in that action, and therefore was estopped from asserting any claim of title adverse to the title of the plaintiffs herein...