Stolze v. Milwaukee & L. W. R. Co.

• Decision Date: 28 January 1902
• Citation: 113 Wis. 44,88 N.W. 919
• Court: Wisconsin Supreme Court
• Parties: STOLZE ET AL. v. MILWAUKEE & L. W. R. CO. ET AL.

113 Wis. 44

88 N.W. 919

STOLZE ET AL.

v.MILWAUKEE & L. W. R. CO. ET AL.

Supreme Court of Wisconsin.

Jan. 28, 1902.

Syllabus by the Judge.

1. Money deposited with the clerk of the circuit court under sections 1850, 1851, Rev. St. 1898, to cover an award of commissioners in condemnation proceedings, cannot be diverted from the purpose thereof by the depositor or its creditors. It must remain subject to the order of him for whom it was deposited until he may choose to claim it in the manner prescribed by such sections.

2. The way money must be paid or tendered in condemnation proceedings, to satisfy the obligation of the party seeking to obtain property by right of eminent domain, is governed by statute, not by common-law rules.

3. The final award in condemnation proceedings having been made by a judgment on appeal from the award of commissioners, the formal extinguishment of such judgment is not a condition precedent to the acquirement of the rights sought to be obtained. The payment, in the manner indicated by statute, of money sufficient to satisfy the constitutional guaranty of a just compensation to the landowner for his property, taken or damaged, is all that is necessary

4. By payment, in the manner indicated in the statute, of the sum of money required to compensate a landowner for his property, taken or damaged by the right of eminent domain, a judgment finally determining the amount of such compensation is thereby paid, and satisfaction thereof becomes a matter which may be accomplished in any manner provided by law for obtaining satisfaction of record of a paid judgment.

5. The sum of money to cover an award in condemnation proceedings, or a receipt showing payment thereof to the party entitled thereto, must be deposited in the office of the clerk of the circuit court where the report of the commissioners was filed and recorded, and the facts in that regard be noted by such clerk at the foot of such record, to fully vest the title to the right sought to be acquired in the party seeking to obtain the same, regardless of whether the award as finally made is in the form of a judgment rendered in another county to which the condemnation proceedings were removed for trial on appeal from the first award.

6. Since private property cannot be taken by the right of eminent domain without just compensation therefor being first ascertained and paid to the owner or deposited in court for his use, the statutes designed to accomplish such ascertainment and payment must be construed so as to fully satisly the constitutional guaranty in that regard or be held void.

7. A just compensation for property taken by the right of eminent domain, within the meaning of the constitution, includes such reasonable costs and disbursements as are taxable in favor of a prevailing party in similar proceedings incurred by the property owner in securing both the ascertainment and payment of such compensation.

8. Costs incurred by a property owner in fruitless endeavors to collect his award in condemnation proceedings, which are ordinarily taxable in favor of a judgment creditor under similar circumstances, must be paid to him as part of the compensation for his property taken or damaged.

9. If a party, seeking to acquire property by the right of eminent domain, deposits money covering the award of the commissioners pursuant to section 1850, Rev. St. 1898, but neglects to pay or deposit, in the manner required by the statute, the additional sum of money awarded to the landowner by the judgment on appeal, or to pay the reasonable costs incurred in fruitless endeavors to collect such judgment, and such costs incurred, if any, in an equity action to restrain the use of the property involved until after just compensation is paid, and, while such equity action is pending, he pays into court where the report of the commissioners was recorded, money sufficient with the first deposit to cover the face of the judgment and interest thereon up to the time of such payment, such payment alone will not satisfy the right of the owner of the property to a just compensation therefor.

10. If the facts as to payment as aforesaid be pleaded in the equity action by supplemental answer as a defense and be established, even if the amount paid were all the landowner was entitled to receive, that would not show extinguishment of the cause of action from the beginning, the plaintiff not having accepted the money or done anything indicating assent to the payment into court as a settlement of his suit. In such circumstances the rule has not been applied that a cause of action which has been extinguished during the pendency of a suit to enforce it cannot be the basis of a judgment for costs.

11. In the situation indicated in No. 9, if the party seeking to acquire property desires to submit to and satisfy the condition precedent thereto and stop the litigation, it should pay, in the proper way, sufficient money to cover the face of the judgment and interest, the costs ordinarily recoverable in proceedings to enforce payment of a judgment, and the costs of the equity action up to the time of such payment; and for the purpose of determining the amount required therefor the costs should be ascertained by proper proceedings in the equity action.

12. Where the right is sought, by sovereign authority, to take or damage private property, the owner thereof may refuse to accept money deposited to satisfy his award in condemnation proceedings till the whole amount to which he is entitled shall have been so deposited, and claim interest on the award as first made from the date thereof to such time.

Appeal from circuit court, Manitowoc county: Michael Kirwan, Judge.

Action by Henry Stolze, Sr., and others, against the Milwaukee & Lake Winnebago Railroad Company and others. Judgment for plaintiffs. On account of its insufficiency, they appeal. Reversed.

Action to restrain a railway company from appropriating the plaintiffs' lands, by right of eminent domain, till compensation therefor should be paid as required by law. The facts are as follows: The Manitowoc Terminal Company duly instituted proceedings to acquire, for railway purposes, certain lands owned by plaintiffs, in which such action was duly taken that April 3, 1895, an award was made to plaintiffs of $1,766 as a just compensation for their property, the award being duly filed on said day. On the same day the amount of the award was duly deposited by the railway corporation in the office of the clerk of the circuit court for Manitowoc county, where the report of the commissioners was filed, and thereupon the property involved was appropriated by the railway company by the construction of its railway track thereon. Both parties to the proceedings seasonably appealed from the award, the appeal of the plaintiffs being taken April 3, 1895. The appeals were consolidated and in due form of law removed to the circuit court for Brown county for determination, where the trial was had, the result being that plaintiffs were awarded $9,000. Judgment was entered accordingly for $9,336.29 damages and costs, from which an appeal was taken to this court, resulting in an affirmance June 23, 1898. Stolze v. Terminal Co., 100 Wis. 208, 75 N. W. 987. A transcript of the judgment rendered in the trial court was filed in the office of the clerk of the circuit court for Manitowoc county July 1, 1897, and an execution was issued from the circuit court for Brown county for the collection thereof, which execution was returned unsatisfied. Subsequently a special proceeding was instituted by plaintiffs to sequestrate the assets of the corporation under section 3216, Rev. St. 1898, in which a receiver of the terminal company was appointed. Plaintiffs were unable, by means of such proceeding, to obtain satisfaction of their judgment or any part thereof. October 23, 1899, upon due notice to the parties interested, the costs in such special proceedings were duly taxed by the court at $810.36, the expenses of the receiver being included therein. The notice of the taxation of costs was in form for a taxation of the costs, fees and disbursements of the receiver. In the taxation proceeding, upon proofs made to the court, costs were taxed, including all the expenses incurred subsequent to the judgment in endeavoring to enforce the same, the total amount being $810.36. After the decision reported in 100 Wis. 208, 75 N. W. 987, and the filing of the remittitur in the trial court, this action was commenced in the circuit court for Manitowoc county to restrain the use of the land in question for railway purposes until the judgment in the condemnationaction, and the subsequent costs, were paid, in which the Milwaukee & Lake Winnebago Railway Company, and the receivers of the Wisconsin Central Railway Company, were joined as defendants with the terminal company. The right of the plaintiffs to the relief claimed was challenged by a demurrer to the complaint. The demurrer was overruled, and on appeal to this court the decision was affirmed September 26, 1899. The case is reported in 104 Wis. 47, 80 N. W. 68. September 30, 1899, there was deposited in the office of the clerk of the circuit court for Manitowoc county, for plaintiffs, $8,955.17, as and for the balance necessary, with the $1,766 theretofore deposited as aforesaid, to satisfy the judgment in the condemnation action. February 8, 1900, the record in this case having been in the meantime filed in the office of the clerk of the circuit court for Manitowoc county, supplemental answers were served, calling attention to the deposit of September 30th, and pleading the same, and the deposit theretofore made, as a defense to the suit. The court, at the end of the trial, allowed such answers to be filed, awarding plaintiffs, as terms thereof, their taxable costs up to the time of such allowance. The issues raised by the pleadings were tried, and November 12, 1900, the court filed findings...