Rusch v. Milwaukee, L. S. & W. R. Co.

• Decision Date: 10 January 1882
• Citation: 54 Wis. 136,11 N.W. 253
• Court: Wisconsin Supreme Court
• Parties: RUSCH v. MILWAUKEE, L. S. & W. R. CO.

54 Wis. 136

11 N.W. 253

RUSCH

v.MILWAUKEE, L. S. & W. R. CO.

Supreme Court of Wisconsin.

Filed January 10, 1882.

Appeal from circuit court, Outagamie county.

Action to recover damages for an alleged trespass by the defendant company upon the land of the plaintiff. The trespass charged is the taking and using of a public street on the plaintiff's land, by the defendant, for its railway track. It appears by the pleadings, evidence, and findings of fact by the court substantially as follows: The defendant located its railway along the street in question in 1876, and instituted proceedings in the proper circuit court to condemn the land desired to its use. The land sought to be thus condemned belonged in severalty to six owners. The proceedings were regularly commenced and carried on as required by the statute, except that the commissioners awarded a gross sum as compensation to all such owners, without specifying the sum to which each was entitled. The railway company paid into court the sum so awarded, and nothing further has been done in such proceeding. The company has ever since used the lands thus sought to be condemned, in operating its railway. The plaintiff gave the company no permission thus to use his land, and took no action hostile thereto until he commenced this suit. On these facts the court gave judgment for the plaintiff for nominal damages and costs. The defendant appeals from the judgment.George W. Burnell, for respondent.

Cottrell, Cary & Hanson, for appellant.

LYON, J.

It is not denied that the award of the commissioners in the condemnation proceedings fails to ascertain the compensation to which the plaintiff is entitled for his land which the defendant proposed to condemn to its use. The aggregate sum only to which six owners in severalty were entitled was ascertained, and no rule is given and none exists by which the proportionate share of each can be ascertained. It is settled that “if a railroad company takes possession of land for which it is liable to make compensation, without the consent of the owner, and without having ascertained and paid the compensation under the process given by the statute, it is a trespasser, and liable in an action of trespass.” Sherman v. M., L. S. & W. R. Co. 40 Wis. 645, and cases cited. No specific claim is made in the answer that the plaintiff ever consented to the use of his land by the defendant, and the undisputed testimony is that he did not, unless such consent is to be implied from his...