Watson v. Milwaukee & M. R. Co.

• Decision Date: 04 April 1883
• Citation: 57 Wis. 332,15 N.W. 468
• Court: Wisconsin Supreme Court
• Parties: WATSON AND OTHERS v. MILWAUKEE & M. R. CO.

57 Wis. 332

15 N.W. 468

WATSON AND OTHERS

v.MILWAUKEE & M. R. CO.

Supreme Court of Wisconsin.

Filed April 4, 1883.

Appeal from circuit court, Waukesha county.Jason Downer, for appellants, Elizabeth J. Watson and others.

Jenkins, Elliott & Winkler, for respondent, Milwaukee & M. Ry. Co.

TAYLOR, J.

This is a proceeding under the statute to take a part of a tract of land situated in the village of Waukesha, belonging to Elizabeth J. Watson, Ellen D. Monteith, Hattie L. Gove, and Mattie E. Cole, heirs of William White, deceased, for the track of the respondent's railway through said village, and to assess the damages which the said company ought to pay for taking the same. The administrator was made a party to said proceeding, as a person having some interest in said tract of land which might be affected by said taking.

Upon this appeal there is no objection made against the regularity of the proceedings on the part of said company in procuring the judgment of the proper court that the company was lawfully entitled to take a part of said tract of land for the track of their road, or in the appointment of commissioners to ascertain and appraise the compensation to be made to the owners or persons interested in said land, a part of which was to be taken for said railroad track under the provisions of sections 1846 and 1847, Rev. St. 1878; nor that the proceedings of the commissioners in making said appraisement, and in reporting their doings in the matter to the proper court, were in any respect irregular.

The report and award made by the commissioners, after reciting their appointment and qualification, and giving notice to the proper parties of the time and place of meeting to examine the premises and make their appraisement and award of damages, and giving at length a description of the tract of land owned by the said appellants in said village across which the track of said railroad was to run, and of the part of said tract to be taken for the purpose of said railway, proceeds to assess the compensation to be paid therefor by said company, and make their award and report as follows:

“And that we did appraise, ascertain, and determine the value of said premises, tract, or parcel of land proposed to be taken, with the improvements thereon, and of each separate interest therein, and the damages sustained by the owner by reason of the taking thereof, and the use of the same by said Milwaukee & Madison Railway Company, and that we fix the compensation to be made therefor to each of such owners and parties interested as follows:

We fix and determine the value of the land so taken, and the amount of damages to the remainder of said tract by reason of the taking and using thereof by said railway company, over and above any real or supposed benefit and advantage which the parties in interest may derive from the construction of the proposed railroad, or the construction of the proposed improvements connected with such road, and over and above all special benefits to the real estate adjoining the lands so taken, at the sum of $2,500.

That we award to Elizabeth J. Watson, as owner in fee of an undivided one-fourth of said lands, for such taking and for such damages, the sum of $625.

That we award to Ellen D. Monteith, for her estate or separate interest in said land, being an estate as owner in fee of an undivided one-fourth, for such taking and damages, the sum of $625.

That we award to Hattie L. Gove, as owner in fee of an undivided one-fourth of said land, and for such taking and for such damages, the sum of $625.

That we award to Mattie E. Cole, as owner in fee of an undivided one-fourth of said land, and for such taking and for such damages, the sum of $625.

And we further certify that upon such hearing the Milwaukee & Madison Railway Company appeared before us by Jas. G. Jenkins, its counsel; and Jason Downer, as attorney for each of the above-named parties, appeared on the part of the persons interested in said land.”

This report and award were filed in the office of the clerk of the circuit court of said county of Waukesha on the seventeenth day of December, 1880, and on the fifteenth of January, 1881, the railroad company, by its attorneys, filed in said clerk's office the following appeal in said matter:

“In the matter of the application of the Milwaukee & Madison Railway Company, to condemn to its use certain real estate, and for the appointment of commissioners of appraisal, pursuant to section 1847 of the Revised Statutes.

The Milwaukee & Madison Railway Company, the petitioner in the above-entitled proceedings, hereby appeals to the circuit court of Waukesha county from the award made and filed herein by the commissioners of appraisal, on the seventeenth day of December, 1880, with respect to the land taken by said company from and claimed to be owned by Elizabeth J. Watson, Ellen D. Monteith, Hattie L. Gove, and Mattie E. Cole, heirs at law of William White, deceased, and in which Thomas G. Watson, as administrator of the estate of William White, deceased, claims an interest, and whereby there was awarded for such taking and damages, to the said Elizabeth J. Watson, the sum of $625; to the said Ellen D. Monteith the sum of $625; to the said Hattie L. Gove the sum of $625; and to the said Mattie E. Cole the sum of $625.

And the said company appeals from the whole and every part of said award.”

After the filing of this appeal, the appellants, Elizabeth J. Watson, Ellen D. Monteith, Hattie L. Gove, and Mattie E. Cole, appeared in said court by their attorney, Jason Downer, and moved said court to dismiss such appeal, on the ground that there are several awards, one to each of the said parties, Watson, Monteith, Gove, and Cole, and not one joint award to the four, and that the appeal is not from any one of the awards separately, but from all jointly. This motion was overruled, and exceptions taken by the appellants. The case was duly noticed for trial in said circuit court. On February 21, 1881, the defendant railway company, having previously paid to the clerk of the court $2,500, the amount of all the sums awarded to the appellants, the administrator of the estate of William White, deceased, by the written consent of all of the said appellants, and pursuant to an order of the court, received said money, first giving a bond according to the provisions of section 1850, Rev. St. 1878, in the sum of $1,000, as directed by the court. On the twenty-fifth of May, 1882, the action was duly noticed and brought on for trial in said circuit court, and thereupon each of the appellants objected to the trial of the case as one action by all the owners as plaintiffs or joint plaintiffs: First, because the award to each plaintiff is a separate award; second, in legal effect there are four separate reports as well as four separate awards; and, third, that there should have been an appeal--a separate appeal--from each separate award; and that by the statute the said plaintiffs are entitled to separate trials, and each plaintiff demanded and insisted upon a separate trial. The motion for separate trial was denied, and plaintiffs duly excepted.

The plaintiffs then objected to a jury being called in the action and to any further proceedings therein, and to any trial thereof, because--“(1) The court had no jurisdiction of the subject-matter of the action; (2) because it had no jurisdiction of the parties; (3) because no appeal has been taken by the Milwaukee & Madison Railway Company, such as the statute requires, and none that is of any validity in law.” These objection were also overruled and the appellants duly excepted. A jury was then called and sworn, and the case tried. The jury found that the plaintiffs were entitled to damages for the land taken by the railway company, and for the injury to their lands not taken, $1,100; and thereupon judgment was entered in favor of the railway company against all the appellants for the sum of $1,100, and interest thereon from the time the said administrator took said money out of court, and costs, amounting in all to the sum of $1,283.60; and from this judgment the plaintiffs appeal to this court. Exceptions were taken in the course of the trial to the introduction and rejection of evidence, to the instructions given by the court to the jury, and to the refusal of the court to give certain instructions requested by the appellants, and also to the allowance of interest on the money withdrawn from the court by the administrator.

The first question raised by the learned counsel for the appellants in this case is one of considerable importance, relative to the practice to be pursued in cases of this kind under the statute. The learned counsel has made a very forcible argument for the purpose of showing that in all proceedings by railroad companies under the statute to condemn lands for the use of the company, and to ascertain and assess the damages the owners thereof are entitled to as against the railroad company taking the same, every party having a separate estate or interest therein has the right to have his damages assessed and determined separately from every other owner, and that every such owner, if dissatisfied with the amount awarded to him, may have a separate appeal to the circuit court, and a separate trial in that court; and further, that if the railroad company is dissatisfied with the award made in favor of any owner of a separate estate, it must appeal from the separate award to such owner.

This question, in some of its aspects, was considered by this court in the case of Spaulding v. Railroad Co. post, 482, and a conclusion was arrived at in that case in direct conflict with the rule which the learned counsel for the appellants asks us to establish in this. In that case a rehearing was granted upon that question, but, unfortunately for this court, no argument of that question was made by either of the learned counsel in their briefs submitted upon...