State ex rel. Chi. & N. W. Ry. Co. v. Oshkosh, A. & B. W. R. Co.

• Decision Date: 22 November 1898
• Citation: 100 Wis. 538,77 N.W. 193
• Parties: STATE EX REL. CHICAGO & N. W. RY. CO. v. OSHKOSH, A. & B. W. R. CO.
• Court: Wisconsin Supreme Court

100 Wis. 538

77 N.W. 193

STATE EX REL. CHICAGO & N. W. RY. CO.

v.OSHKOSH, A. & B. W. R. CO.

Supreme Court of Wisconsin.

Nov. 22, 1898.

Certiorari by the state, on the relation of the Chicago & Northwestern Railway Company, against the Oshkosh, Algoma & Black Wolf Railroad Company, to review condemnation proceedings commenced by the respondent against the relator. The respondent moves to quash the writ. Granted.Fish, Cary, Upham & Black, for relator.

Eaton & Weed and Miller, Noyes, Miller & Wahl, for respondents.

WINSLOW, J.

The Oshkosh, Algoma & Black Wolf Railroad Company is a corporation organized for the purpose of constructing and operating a railroad for the purpose of carrying persons only from a point within the limits of the city of Oshkosh, through the towns of Algoma and Black Wolf, to the shore of Lake Winnebago. Desiring to cross the tracks and right of way of the relator, it commenced condemnation proceedings for that purpose in the circuit court by petition. The relator appeared upon the hearing, and, among other objections, raised the objection that the respondent was not a railroad corporation, within the meaning of the law authorizing condemnation, and had not the right of eminent domain. The objections were overruled, and an order made by the court appointing commissioners. Thereupon the relator sued out a writ of certiorari from this court, and, after return, the respondent moved to quash the writ. The motion must be granted. The order in question was a final order made by the court in a special proceeding, and hence was appealable. Gill v. Railway Co., 76 Wis. 293, 45 N. W. 23;Wisconsin Cent. Ry. Co. v. Cornell University, 49 Wis. 162, 5 N. W. 331. Appeal from the order is an entirely adequate remedy to test the question raised by the relator. The general rule is well established that a common-law certiorari will not issue where a party has an adequate remedy by appeal. Wardsworth v. Sibley, 38 Wis. 484;McCaffrey v. Nolan, 1 Wis. 361; Harris, Certiorari, § 44. Writ quashed.