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

• Citation: 201 Wis. 325,230 N.W. 44
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 01 April 1930
• Parties: SMITH ET UX. v. MILWAUKEE ELECTRIC RAILWAY & LIGHT CO.

201 Wis. 325

230 N.W. 44

SMITH ET UX.

v.MILWAUKEE ELECTRIC RAILWAY & LIGHT CO.

Supreme Court of Wisconsin.

April 1, 1930.

Appeal from a judgment of the Circuit Court for Racine County; George Thompson, Circuit Judge. Affirmed.

Condemnation proceedings by the Milwaukee Electric Railway & Light Company against Edward A. Smith and Mary Smith. From the award of the commissioners, Edward A. Smith and Mary Smith appealed to the circuit court as parties plaintiff. From the judgment entered, Edward A. Smith and Mary Smith appealed.Whaley & Paulsen and Beck, Smith & Heft, all of Racine, for appellants.

Thompson, Myers & Helm, of Racine, and Shaw, Muskat & Sullivan, of Milwaukee, for respondent.

OWEN, J.

Edward A. Smith and Mary Smith, his wife, owned a farm in close proximity to the city of Racine, consisting of about 56 acres. The farm is traversed by the right of way of the Chicago & Northwestern Railway Company in a northerly and southerly direction. Forty-six acres of the farm is west of this right of way and 9.72 acres is east thereof. The farm buildings are east of the right of way. The Milwaukee Electric Railway & Light Company condemned a 100-foot strip containing 1.76 acres immediately east of the Northwestern right of way. The commissioners appointed to appraise the damages awarded the owners $7,540 as compensation. In the circuit court the jury assessed the fair market value of the land taken at $2,092, and found that the value of the remaining real estate was diminished in the sum of $5,324.

The land lying east of the right of way is within the city limits of the city of Racine. The land lying west thereof is not. There was evidence to show that the land lying east of the right of way was adaptable to platting purposes and that the value thereof was $2,000 per acre.

The court submitted two questions to the jury, the first of which was, “What was the fair market value on April 17, 1929, of the strip of land condemned and taken in this proceeding?” and the second was, “In what amount, if any, was the fair market value of the real estate of the plaintiffs which was not taken, diminished by the taking of the strip condemned, considering the uses to which the plaintiffs' premises were put on the 17th day of April, 1929, and such other uses to which said premises might be reasonably adapted, as the evidence in this case may establish?”

[1] Complaint is made of the manner in which the question of plaintiffs' damages was submitted to the jury. The contention in this respect is based upon Muscoda Bridge Co. v. Grant County (Wis.) 227 N. W. 863, decided since the instant case was tried. In that case it is recognized that the manner in which the question was here submitted finds sanction in prior decisions of this court. It was pointed out, however, that the actual damages sustained by the property owner in such cases is the difference between the value of his premises, of which the land taken formed a part, before and after the taking. This is the exact measure of the damages sustained by the property owner in such cases. It includes not only the value of the property taken, but the diminution in value of the remainder of the land. A simple, direct way of fixing plaintiffs' damages is to ascertain the value of the tract out of which the property is taken before and after the taking thereof.

[2] It was pointed out that the method employed by the trial court is confusing, and sometimes results in a duplication of damages, as was the case in Jeffery v. Chicago & Milwaukee Electric Railroad Co., 138 Wis. 1, 119 N. W. 879, and Fritz v. Southern W. P. Co., 181 Wis. 437, 195 N. W. 321. The method here adopted in submitting the question to the jury was disapproved in the Muscoda Case, and it was...