Taylor v. Chi., M. & St. P.R. Co.

• Decision Date: 01 June 1885
• Citation: 63 Wis. 327,24 N.W. 84
• Parties: TAYLOR v. CHICAGO, M. & ST. P. R. CO.
• Court: Wisconsin Supreme Court

63 Wis. 327

24 N.W. 84

TAYLOR

v.CHICAGO, M. & ST. P. R. CO.

Supreme Court of Wisconsin.

Filed June 1, 1885.

Appeal from circuit court, Fond du Lac county.Maurice McKenna and Henry J. Gerpheide, for respondent.

John M. Cary and Burton Hanson, for appellant.

TAYLOR, J.

This is an action of ejectment brought by the respondent against the appellant company, to recover the possession of a strip of land along which the company and its predecessor in right had constructed and operated a railroad track. The evidence shows conclusively that the track was constructed along a public street in the city of Fond du Lac, and had been used as a railroad for about eight years before the commencement of this action, and, so far as the evidence in this case shows, such railroad had been so built and operated along said street, and on the strip of land now claimed by the plaintiff, during all that time without any protest or objection made by the plaintiff or by her husband, who was, if the plaintiff now owns the the same, a joint tenant with her in the ownership of said strip at the time said railroad was built. It appears from the evidence that the husband died sometime in December, 1876. It is assumed, for the purposes of this appeal only, that the plaintiff is the owner of the strip of land in question, subject to the right of the public to use the same as a street. Upon the evidence we think it clear that the plaintiff wholly failed to make out a case against the company which entitled her to a judgment to recover the possession of the land, and the court should have granted a nonsuit as requested by the appellant.

This court has uniformly held that under the constitution of this state the legislature has no power to authorize a railroad company to take possession of, and permanently occupy, the lands of a private citizen without his consent, for the purpose of constructing a railroad thereon, without first making compensation therefor. It has also as uniformly held that such company may do so with his consent, and that when the citizen has consented to such permanent occupation by the company, the legislature may restrict his remedy for compensation therefor to the same proceeding which the company is compelled to take in order to fix such compensation when it desires to permanently occupy the lands of the citizen against his consent. See Bohlman v. Railway Co. 30 Wis. 105;Sherman v. Railroad Co. 40 Wis. 645-651.

In the Sherman Case the late learned Chief Justice RYAN says, speaking of chapter 175, § 2, Laws 1861: “Our first impression was that the section was inconsistent with the provisions of the general railroad act; but the construction given to the section in Bohlman v. Railway Co. 30 Wis. 105, limiting it to cases where the railroad companies had taken possession by permission of the owner, makes it quite consistent with the act of 1872. The construction is still satisfactory to us; for it recognizes that there are two ways by which a railroad company can lawfully enter into possession of land not acquired by purchase: upon making just compensation under its exercise of the right of eminent domain, or by permission of the owner. In the latter case the owner waives compensation as a condition precedent, but not the compensation itself. He therefore assumes to himself the process of ascertaining the compensation which would otherwise have devolved upon the railroad company. And the section in question simply enables him to do so. This purpose is very plainly expressed in section 4 of chapter 291 of 1873, amending the general railroad act of 1872; the provision in the latter section being probably intended as a substitute for the section of 1861.”

Section 4 of chapter 291 of 1873, above referred to, is now in substance section 1852, Rev. St. 1878.

In the Bohlman Case, above cited, Chief Justice DIXON says, referring to the act of 1861: “It is obvious from the most cursory reading of that act that it only applies, and was only intended to apply, to cases where the railroad company has entered upon, and has...