Wis. Cent. R. Co. v. Cornell Univ.

• Decision Date: 24 March 1881
• Parties: WISCONSIN CENTRAL R. CO. v. CORNELL UNIVERSITY.
• Court: Wisconsin Supreme Court

52 Wis. 537

8 N.W. 491

WISCONSIN CENTRAL R. CO.

v.CORNELL UNIVERSITY.

Supreme Court of Wisconsin.

Filed March 24, 1881.

Appeal from circuit court, Taylor county.

August 1, 1879, the Wisconsin Central Railroad Company filed its verified petition with the clerk of the circuit court for Taylor county (to which Price county was attached for judicial purposes) for condemning certain lands therein described for its right of way in Price county. The petition was addressed to the judge of said court, and alleged, among other things, that the width of the right of way over said lands required by the company was 200 feet, and that the same was necessary to construct and operate its road, for the reasons therein expressed, and tendered compensation, and prayed the appointment of commissioners as required by law. Upon the hearing of the petition before the judge, the university objected to the same, for the reason, among others, that similar proceedings for condemning the same lands were then pending in Chippewa county, from which Price had been detached. In support of that objection the university filed with the judge in said proceedings a certified copy of the alleged proceedings pending in the circuit court for Chippewa county, purporting to have been commenced in November, 1878, and certain orders entered therein in December, 1878, among which was an order denying a motion made by the railroad company to remove the cause to Taylor county, by reason of Price county being so detached from Chippewa and annexed to Taylor, by chapter 103, Laws 1879. The judge of the circuit court for Taylor county overruled the objection, and thereupon the university filed therein its verified answer, setting up, among other things, the said proceedings in Chippewa county, admitting title in fee to the lands described, and denying each and every material allegation of the petition not admitted, and especially the necessity of taking more than 100 feet in width for right of way, and prayed that in case the petition should be granted it should be limited to 100 feet.

The judge decided that the affirmation of that issue was with the university, and that the railroad company was not required to show the necessity for taking more than 100 feet, nor any other fact, otherwise than by the said petition. To that decision the university excepted. October 25, 1879, the judge, without any evidence, ordered, determined, and adjudged that the railroad company was entitled to take, for the uses and purposes of its right of way, the strip of land described, the same being 200 feet in width, and appointed commissioners thereon, to ascertain and appraise the compensation to be made therefor, etc. To that order the university excepted. Among the papers in the record is one without date, filed by and on behalf of the railroad company with the clerk of the circuit court of Portage county, December 5, 1879, and refiled with the clerk of the circuit court of Taylor county, January 22, 1880, purporting to discontinue said proceedings so pending in Chippewa county. Thereupon the university, on due notice and affidavit, moved the circuit court for Taylor county, at a special term thereof held in Portage county, to set aside the order so made upon the papers filed, and the objections taken before the judge, and which objections were renewed upon the hearing of the motion,...