West v. Milwaukee, L. S. & W. Ry. Co.

• Decision Date: 12 December 1882
• Citation: 56 Wis. 318,14 N.W. 292
• Parties: WEST v. MILWAUKEE, L. S. & W. RY. CO.
• Court: Wisconsin Supreme Court

56 Wis. 318

14 N.W. 292

WEST

v.MILWAUKEE, L. S. & W. RY. CO.

Supreme Court of Wisconsin.

Filed December 12, 1882.

Appeal from circuit court, Outagamie county.

A petition was duly filed in the office of the clerk of the circuit court for Outagamie county for the condemnation for railway purposes, under chapter 87, Rev. St., of lot 2, in block 1, in the Fourth ward of Appleton, (except a piece described by metes and bounds,) and alleged the same to belong to the plaintiff, and the necessary steps intermediate to its filing and the report of the commissioners were duly had and taken. November 28, 1879, the commissioners filed their award, giving to the plaintiff therefor $1,000; and in the December following both parties appealed to the circuit court, where the cross-appeals were consolidated by the court, and a trial thereon had therein by a jury, who, under the charge of the court, returned a verdict for the plaintiff of $1,425, and from the judgment entered thereon the plaintiff brings this appeal.Sloan & Bottensek, for appellant, Edward West.

Cottrill, Cary & Hanson, for respondent, Milwaukee, Lake Shore & Western Railway Company.

CASSODAY, J.

Among the errors complained of by the plaintiff were the exclusion of certain maps and evidence relating to the same, and the pointing out, upon the map offered, the location of the land. It appears that the jury viewed the premises; that a diagram (Exhibit A) of the premises, made by a civil engineer and surveyor, who was one of the plaintiff's witnesses, was admitted in evidence, and the plaintiff testified: “I have examined the description mentioned in the condemnation proceedings--that part of all lot 2 of block 1, in Fourth ward, city of Appleton, except certain property mentioned there. I made a survey of that property. Upon this diagram (Exhibit A) is shown what portion of the lot was taken by the description mentioned in the condemnation proceedings. It shows the bearings and distances separating the land in litigation from that I sold to Angus Smith. It includes all of lot 2 except that.” Thus it appears that the plaintiff was permitted to locate and point out to the jury the land for which he was seeking damages, and there does not seem to have been any dispute about it. There seems to have been no claim that the condition of the premises was any different at the time of the trial and the time of making the award. These things being so, it is difficult to perceive just how the plaintiff could be injured by their exclusion, even if the map did show something different. But the map is not referred to in, nor in any way identified as a part of, the bill of exceptions, and hence is no part of the record; and we are not authorized, in its absence from the record, to hold that it should have been admitted. For aught that appears, there may be many reasons why it was properly excluded. Thomas v. Wiesmann, 44 Wis. 339. Besides, the plaintiff seems to have confined his evidence of value excluslvely to a certain 22 feet. This appears from the judge's charge, which is a part of the bill of exceptions. He told the jury: “You have nothing to do with any value of this tail-race, or any interest Mr. West may have had in the tail-race. There is no evidence about that. The evidence has been confined to the value of that part of this land which is not in the tail-race, and is not claimed to be in the tail-race; simply the 22 feet on Lake street, and the other dimensions of it you will remember.” It is true, this portion of the charge is excepted to; but the bill of exceptions is not certified to contain all the evidence, and hence the statement in the charge as to what the evidence was must be taken as a verity. Pick v. Co. 27 Wis. 438.

It is urged as error that the court charged the jury; “You are entitled to consider, and must and should consider, what Mr. West sold the adjoining tract for, the tract to Angus Smith, and the price he got for it; but you are not bound to act upon that alone, and you ought not to act upon that alone, but in connection with the other evidence. Mr. West had the right, if he wished to give that land to the railroad company, or sell it for what it was worth, or less than it was worth, or more than it was worth, if he could get it, so what he got for that land is not binding upon you for the price to be fixed by you upon this property, but only as an item of evidence arriving at what you believe from the whole evidence to be the actual value or the actual market value of the property now in question.” While the words “must and should consider,” taken by themselves, may have been objectionable, yet, as they were subsequently qualified, we are clearly of the opinion that they did not mislead the jury. The trial court was clearly right in excluding evidence of value at the time of the trial, and charging the jury, in effect, that they should find the value as of the time of filing of the award. Lyon v. Ry. 42 Wis. 585;Aspinwall v. Ry. 41 Wis. 474;Driver v. Ry. 32 Wis. 569;Kennedy v. Ry. 22 Wis. 581;Ry. v. Eble, 3 Pin. 334.

The statute provides that the report of the commissioners be recorded by the clerk in the judgment book,...