State ex rel. Oshkosh, W, A. & B. W. R. Co. v. Burnell

• Decision Date: 20 October 1899
• Citation: 80 N.W. 460,104 Wis. 246
• Court: Wisconsin Supreme Court
• Parties: STATE EX REL. OSHKOSH, A. & B. W. R. CO. v. BURNELL, CIRCUIT JUDGE.

104 Wis. 246

80 N.W. 460

STATE EX REL. OSHKOSH, A. & B. W. R. CO.

v.BURNELL, CIRCUIT JUDGE.

Supreme Court of Wisconsin.

Oct. 20, 1899.

Mandamus by the state, on the relation of the Oshkosh, Algoma & Black Wolf Railroad Company, against George W. Burnell, circuit judge, etc. Peremptory writ denied.

This is a mandamus action brought in this court, the object being to obtain a peremptory writ of mandamus requiring the respondent, as circuit judge, to enter an order in the circuit court of Winnebago county directing a writ of assistance to be issued to put the relator in possession of a crossing 16 feet wide, across the right of way of the Chicago & Northwestern Railway Company. The petition of the relator set forth, in detail, the proceedings, by which it appears that it had obtained condemnation of the 16-foot strip aforesaid, and had paid the award of the commissioners in court, and, further, that the appeal from said award to the circuit court of Winnebago county had been dismissed; also that, before bringing this proceeding, it had applied to the circuit court of Winnebago county for a writ of assistance, and that such application had been denied. Upon this petition an alternative writ was issued, and, upon the return thereof, the respondent made his return, which return was not denied in any material aspect upon the hearing. The facts which appeared by the petition and the return together are, in substance, that on the 8th day of July, 1898, the relator, which is a railway company incorporated under section 1820, Rev. St., for the purpose of carrying passengers only, commenced condemnation proceedings for the purpose of condemning a strip of land 16 feet wide for right of way purposes across the right of way of the Chicago & Northwestern Railway Company. The Chicago & Northwestern Railway Company answered this petition, denying that the relator was a railroad corporation entitled to condemn such crossing. Upon the hearing of the petition, the prayer thereof was granted, and an order made appointing three commissioners to determine the question of the necessity of the taking of the land described in the petition, and to determine the points and manner of such crossing, and the amount of compensation to be paid therefor. Thereafter the commissioners met, and on the 30th day of January, 1899, filed their report, in which they determined that it is necessary for the petitioner to take, for right of way and crossing purposes, the strip of land 16 feet wide (describing it) across the right of way of the Chicago & Northwestern Railway Company. The commissioners also determined the points and manner of the crossing to be made with overhead trolley wires, and fixed the amount of the compensation to be paid by the petitioner. Subsequently the Chicago & Northwestern Railway Company appealed from this report to the circuit court of Winnebago county, and applied to that court for an order restraining the petitioner from putting in any crossing until such appeal was heard. This order was granted, upon the giving of an undertaking in the sum of $5,000, which was given. Subsequently the appeal came on to be heard in the circuit court, jury was waived, and the Chicago & Northwestern Railway Company claimed that the burden rested upon the petitioner to prove that it was necessary for it to condemn a crossing, because these proceedings were taken under section 1854, Rev. St., under which the question of the necessity of taking land was still open upon this appeal. This contention was overruled by the circuit court, which held that the affirmative was with the Chicago & Northwestern Railway Company. The said railway company then moved the court to dismiss the petition, and all proceedings under it, on the ground that the petitioner was not a corporation entitled to condemn lands, and that all proceedings theretofore had were void. This motion being denied, the ...