Putney Bros. Co. v. Milwaukee Light, Heat & Traction Co.

• Decision Date: 28 January 1908
• Citation: 134 Wis. 379,114 N.W. 809
• Court: Wisconsin Supreme Court
• Parties: PUTNEY BROS. CO. v. MILWAUKEE LIGHT, HEAT & TRACTION CO.

134 Wis. 379

114 N.W. 809

PUTNEY BROS. CO.

v.MILWAUKEE LIGHT, HEAT & TRACTION CO.

Supreme Court of Wisconsin.

Jan. 28, 1908.

Appeal from Circuit Court, Waukesha County; James J. Dick, Judge.

Condemnation proceedings by the Milwaukee Light, Heat & Traction Company against the Putney Bros. Company. From the award of the commissioners, both parties appealed to the circuit court; and from a judgment therein for the Putney Bros. Company for nominal damages, it appeals. Affirmed.

Appeal from a judgment of the circuit court for Waukesha county, rendered upon a verdict directed in favor of the appellant for six cents damages in a condemnation proceeding instituted by the respondent in 1904, in which the commissioners on January 10, 1905, filed their award. This award gave the appellant $250 damages, and both parties appealed from such award to the circuit court.

Among other references cited upon the part of the appellant were the following: Younkin v. Milwaukee L., H. & T. Co., 112 Wis. 15, 87 N. W. 861;Abbott v. Milwaukee L., H. & T. Co., 126 Wis. 634, 106 N. W. 523, 4 L. R. A. (N. S.) 202;Pomeroy v. C. & M. Ry. Co., 25 Wis. 641;Milwaukee & N. R. R. Co. v. Strange, 63 Wis. 178, 23 N. W. 432;Buchner v. Railway Co., 56 Wis. 403, 14 N. W. 273;La Crosse & M. R. R. Co. v. Seeger, 4 Wis. 268; 2 Lewis on Eminent Domain (2d Ed.) 1145; Murray H. L. Co. v. Milwaukee L., H. & T. Co., 126 Wis. 14, 104 N. W. 1003;State ex rel. Jenkins v. Harland, 74 Wis. 11, 41 N. W. 1060;Campbell v. Dick, 80 Wis. 42, 49 N. W. 120;Hocks v. Sprangers, 113 Wis. 123, 87 N. W. 1101, 89 N. W. 113;Hill v. Am. Surety Co., 107 Wis. 19, 81 N. W. 1024, 82 N. W. 691; Supreme Court rule 58.

Among other references cited upon the part of the respondent were the following: Lyons v. Green Bay & M. Ry. Co., 42 Wis. 538; 2 Lewis, Eminent Domain, §§ 483, 507.Tullar & Lockney, for appellant.

Ryan, Merton & Newbury (Clarke M. Rosecrantz, of counsel), for respondent.

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

The appellant is a corporation and in March, 1895, succeeded to the general mercantile business of Putney Bros. (a copartnership) carried on in a store abutting on Broadway in the city of Waukesha. Putney Bros. on November 1, 1892, leased from H. M. Frame all of the first floor of store No. 329 Broadway and running through to South street, and all of the cellar under said floor, and the room in the second story facing on South street, for the term of five years, with the privilege to the lessees of a second term of five years on the same terms and conditions. There was a covenant not to underlease the premises or assign the lease without the consent of the lessor in writing. The lease was nevertheless in 1896 transferred to the corporation appellant, and it continued the business and remained in possession under said lease up to November 1, 1902. Some days after H. M. Frame executed to the corporation appellant a new lease running from November 1, 1902, for one year, and in August, 1903, extended in writing this last-mentioned lease to January 1, 1904. On the last-mentioned date the appellant vacated the leasehold premises, and the leasehold came to an end. It appears from the award of commissioners, and from certain excerpts from the defendant's articles of incorporation, and from certain excerpts from its petition for the appointment of commissioners, that the defendant is a street and interurban railway corporation, and some time prior to December 28, 1904, but after the expiration of appellant's leasehold estate, filed a petition for the appointment of commissioners for the purpose of condemning and permanently appropriating so much of the lot in which plaintiffs owned a leasehold interest as lies within the public highway known as Broadway for a right of way for said interurban railway, and for the construction, maintenance, and operation thereon of the double-track interurban railway authorized by defendant's articles of incorporation from the city of Milwaukee, through the city of Waukesha, over and along and upon said street, and over...