Riddle v. Lodi Tel. Co.

• Decision Date: 15 November 1921
• Citation: 185 N.W. 182,175 Wis. 360
• Parties: RIDDLE v. LODI TELEPHONE CO.
• Court: Wisconsin Supreme Court

175 Wis. 360

185 N.W. 182

RIDDLE

v.LODI TELEPHONE CO.

Supreme Court of Wisconsin.

Nov. 15, 1921.

Appeal from Circuit Court, Columbia County; Chester A. Fowler, Judge.

Proceedings by Cornelia A. Riddle against the Lodi Telephone Company. Judgment on an award of damages by commissioners in a condemnation proceeding was entered for plaintiff after appeal to the circuit court, and plaintiff again appeals. Reversed, and remanded for a new trial.

Condemnation. The defendant company instituted condemnation proceedings for the purpose of acquiring the right to erect and maintain a telephone line in front of the farm premises owned by the plaintiff. The commissioners awarded 6 cents damages, from which the plaintiff appealed to the circuit court of Columbia county. There was a trial, the question of damages was submitted to the jury, and the jury awarded $50 damages, for which judgment was entered; from which the plaintiff appeals.Grotophorst & Quale, of Baraboo, for appellant.

J. L. Mahoney, of Portage (H. E. Andrews, of Portage, of counsel), for respondent.

ROSENBERRY, J.

By objections to the admission of evidence and exceptions thereto, by requests for instructions and by exceptions to the instructions given, the appellant raises three questions:

First. What is the correct rule as to the measure of damages where a telephone company condemns the right to erect and maintain its lines on a public highway adjacent to a farm?

Second. Upon the trial of the issue as to damages, may the owner show the full extent of the use to which the condemned premises may be put?

Third. In an action or in a proceeding for condemnation, may the owner recover as part of the damages injuries resulting from prior trespass?

In ruling upon the admission of certain evidence as to whether or not the witness should take into account the accessibility of the premises of the plaintiff to the telephone line, the court said:

“It is proper for the jury to consider the presence of the telephone line and the accessibility that it furnishes for ordinary public use; but no special use, of course, to the plaintiff is involved in the case at all.”

In instructing the jury the court said:

“Remember that the measure of damages is, as I stated to you, the difference between the market value or selling value of the two parcels of land upon July last with the telephone line upon it and without such telephone line, and the rights incident to the maintenance of the line.”

It is the contention of the plaintiff that this is contrary to the rule laid down in Washburn v. Milwaukee & Lake Winnebago Railway Co., 59 Wis. 364, 18 N. W. 328, and subsequent cases. In that case the court said:

“The location of a depot at a given point is a general public benefit, although, as in the case of any general benefit created by public improvements, one citizen may be more directly and largely benefited than another. * * * That statute [section 1848, Stats. 1878] provides only for the allowance of special benefits in such cases, and such is not the character of the benefit under consideration. It would seem that a benefit which may thus be allowed is one which enhances the value of the land affected by it, by improving its physical condition and adaptability for use; such as by reclaiming waste land, by draining or flowing a marsh, by aiding in the development of a water power, by dispensing with the necessity of maintaining fences, or by opening a mine or quarry, or the like. We are unable to conceive of any other kind of benefits which are not general benefits as well, and hence outside the statute.”

The language of section 1848, R. S. 1878, is substantially the same as the language of section 32.10, Wis. Stats. 1919, applicable to the proceedings in this case. The statute says:

“They [the commissioners] shall not make any deduction because of any benefit which the parties may derive from the construction of the improvement for which the property is taken, but special benefits to lands adjoining the lands so taken may be allowed in deduction of any damages sustained by the owner to such adjoining land.”

[1] Manifestly, in the present case, the land of the plaintiff upon which the telephone line is situated is no more accessible to the telephone line than the land on the opposite side of the highway, which sustains no burden by reason of the erection of the...