Taylor v. Chi., M. & St. P. Ry. Co.
| Decision Date | 06 December 1892 |
| Citation | 53 N.W. 855,83 Wis. 645 |
| Parties | TAYLOR v. CHICAGO, M. & ST. P. RY. CO., (TWO CASES.) |
| Court | Wisconsin Supreme Court |
Cross appeals from circuit court, Milwaukee county; D. H. JOHNSON, Judge.
Action by William R. Taylor against the Chicago, Milwaukee & St. Paul Railway Company to obtain an appraisement of damages for the appropriation of real estate to defendant's use. Plaintiff had judgment, and from the allowance of costs both parties appeal. Affirmed.
The other facts fully appear in the following statement by LYON, C. J.:
The railway company laid one of its tracks upon the lot of the plaintiff in the city of Milwaukee, and delayed or omitted to institute and prosecute condemnation proceedings to ascertain the compensation to which the plaintiff is entitled because thereof. Thereupon the plaintiff instituted such proceedings, and procured the appointment of commissioners to determine such damages. The commissioners made such award, and both parties appealed therefrom to the circuit court. On the trial of those appeals the plaintiff recovered increased damages. The plaintiff applied to the court to adjust and fix the amount of his costs and expenses in the matter of such proceedings. He claimed $3,000 for attorneys' fees, and $65 for necessary disbursements. The only proof of the value of such services was his own affidavit to the effect that he is advised and believes he is liable to his attorney for the whole $3,000 claimed, and that the same is not an unreasonable charge. He also made affidavit of the necessity of the other expenditures charged as disbursements. An affidavit on behalf of the railway company was read on the hearing of the motion, which contains nothing material to the determination of these appeals, except a denial of the necessity for such disbursements of $65. The court made an order allowing the plaintiff $500 for services of his attorney in the condemnation proceedings down to the time the appeals were taken from the award of the commissioners. The court also allowed the disbursements charged at $65.N. S. Murphey, for plaintiff.
John T. Fish and C. H. Van Alstine, for defendant.
LYON, C. J., ( after stating the facts.)
We are of the opinion, and so hold, that the provision of the statute which entitles the plaintiff to the cost and expense of prosecuting the condemnation proceedings when the company, by its neglect or omission, has compelled the plaintiff to institute the same, (Rev. St. § 1852,) is not limited by what would be taxable costs in an action. If such was the intention of the legislature, we think the term “and expense” would have been omitted. The policy of the statute seems to be to make it the duty of the railway company to institute the proceedings, for when it does so no costs are allowed to the landowner. Railway Co. v. Kneale, 79 Wis. 95, 48 N. W. Rep. 248. But if the railway company omits to do so, and...
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