Wis. Water Co. v. Winans

• Decision Date: 11 April 1893
• Citation: 54 N.W. 1003,85 Wis. 26
• Parties: WISCONSIN WATER CO. v. WINANS ET AL.
• Court: Wisconsin Supreme Court

85 Wis. 26

54 N.W. 1003

WISCONSIN WATER CO.

v.WINANS ET AL.

Supreme Court of Wisconsin.

April 11, 1893.

Appeal from circuit court, Waukesha county; Frank M. Fish, Judge.

In condemnation proceedings by the Wisconsin Water Company to acquire certain lands for a right of way for its pipes, George Winans and others demurred to the petition, and from an order overruling the demurrer, and from an order appointing commissioners, they appeal. Reversed.

The other facts fully appear in the following statement by CASSODAY, J.:

It appears from the record that January 4, 1893, the Wisconsin Water Company filed with the clerk of the circuit court for Waukesha county its verified petition, addressed to said court and the judge thereof, stating, in effect, that said petitioner was duly incorporated and organized under and in pursuance of the laws of this state. That the business and purposes for which it was formed, and in which it was by law authorized to engage, was the construction and maintenance of waterworks and connections, for the supply of the inhabitants of the cities of Milwaukee, Burlington, Racine, and other cities and villages with water for domestic use and for sanitary purposes, and to do a general waterworks business; and to that end, and for such purpose, to build and construct all necessary reservoirs and other buildings and appliances, lay pipes and pipe lines, and acquire for itself, its successors and assigns, the title in fee simple to, and such easement in and servitude upon, all such lands, streets, roads, highways, and places as might be necessary, and to use and hold the same, and generally to do any and all requisites necessary or proper to be done to convey, distribute, and supply water to the inhabitants of such cities and villages, or any of them, for hire. That it had contracted for and purchased of the Waukesha Hygeia Mineral Spring Company, a corporation organized under the laws of Illinois, owning the Hygeia and Glenn springs in Waukesha, and that it then owned and possessed the right to use said springs, and the buildings, machinery, and apparatus thereof, to the extent necessary for all purposes for which the petitioner might require the same in its business; and that it was its purpose and intention to convey, distribute, furnish, and supply water from said springs for drinking and sanitary purposes to the inhabitants of Milwaukee, by means of a pipe line extending from said springs to the city of Milwaukee, to be laid and constructed on a line or route extending from said springs southerly a distance of about 10 miles, to “Darling Place,” so called, and thence in a northeasterly direction to the limits of the city of Milwaukee. That said petitioner had actually surveyed its route and staked out the center line thereof from said springs to the city of Milwaukee, as aforesaid. That said pipe line was necessary to enable said petitioner to convey such water from said springs to the city of Milwaukee, and to distribute, furnish, and supply the same for drinking and sanitary purposes to the inhabitants thereof. That said pipe line will be the main line of pipe of said petitioner. That it is authorized by its charter to construct its said pipe line over the route aforesaid, and that it is its intention, in good faith, to construct, lay, maintain, and operate said pipe line over and along said route. That its line had been located by its board of directors upon the line so staked out. That for such purpose it was necessary that a strip of land one rod in width be acquired by said petitioner on and along the line of said proposed route, and that such right of way had been fixed and established by its board of directors at the width named. That the lands across which said pipe line had been so staked out, with the names of the parties who owned and occupied the same, and who are interested therein, as near as said petitioner could ascertain, were as therein specifically stated. That said real estate so described was required and was necessary for the purpose of constructing, maintaining, and operating its proposed pipe line from said springs in Waukesha to the city of Milwaukee. That maps of said route, fully showing all the facts connected therewith, were annexed to said petition. That none of said owners or occupants or persons so interested were infants, except as therein stated, and none of unsound mind or unknown to said petitioner, and that a general guardian had been appointed for said infants; and prayed that it might be determined that the petitioner was entitled to take the whole of said land and real estate sought to be acquired by proceedings herein, and also for the appointment of commissioners of appraisal thereof, and that an order be made prescribing that notice be given of the time and place of hearing said petition, pursuant to law, and that a guardian ad litem be appointed for said infants. That a deed was executed by the said Waukesha Hygeia Mineral Spring Company to the said petitioner, bearing date January 3, 1893, and acknowledged January 16, 1893, wherein and whereby, in consideration of one dollar and other valuable considerations in hand paid by the said petitioner, the receipt whereof was thereby confessed and acknowledged, the said Waukesha Hygeia Mineral Spring Company granted, bargained, sold, conveyed, and confirmed unto the said petitioner, its successors and assigns, forever, all of the right of way already acquired, and pipe line already laid, by the said Waukesha Hygeia Mineral Spring Company between Burlington, Racine, and Waukesha, together with all material on hand necessary to complete said pipe line between said points, and all contracts for the completion of the same, and all contracts for right of way between said points theretofore obtained by it; and also the right to use the springs owned by said company, and the buildings, machinery, and apparatus thereof, to the extent necessary for all the purposesfor which the said petitioner may require the same in its business; to have and to hold the same to the said petitioner, its successors and assigns, forever, subject to the mortgages then outstanding on said property thereby conveyed and transferred. That January 12, 1893, the board of directors of the petitioner authorized and directed the president and secretary thereof to enter into a contract with the said Waukesha Hygeia Mineral Spring Company, to the following effect, and the same was entered into accordingly, and which contract bears date January, 1893, wherein, in consideration of the covenants therein contained on the part of the said Waukesha Hygeia Mineral Spring Company, and other valuable considerations, the petitioner thereby covenanted and agreed with the said Hygeia Company that it would by April 1, 1893, have acquired the right of way for a pipe line, and would complete its pipe line from the said Hygeia and Glenn springs to a point east of Burlington at the end of the pipe line which had theretofore been constructed by said Hygeia Company, and that it would, from the time of its completion of its said pipe line to said point, continuously furnish to the said Hygeia Company, through said pipe line at said point, water from said springs sufficient to fill a six-inch pipe, until April 1, 1894, at and for the sum of $50 per day: provided, always, that the ability of said petitioner to furnish said water to the inhabitants of Milwaukee and Burlington shall not be impaired thereby. That said Hygeia Company thereby covenanted and agreed that for the water so furnished it would pay to the petitioner the sum of $50 per day, payable on the 15th day of each and every month at the office of said petitioner in Milwaukee, and that the petitioner would pay to said Hygeia Company $500 for each and every day which should elapse after April 1, 1893, until said pipe line to said point was completed. That said Hygeia Company thereby covenanted and agreed that it would pay to the petitioner $500 for each and every day that should elapse after its said pipe line should have been completed to said point near Burlington, before April 1, 1893. That the petitioner, immediately upon the acquisition by it of the remainder of the right of way for said pipe line to said Burlington, would enter upon the construction of, and forthwith construct and equip with suitable machinery, pumping works sufficient to furnish water from said spring for the purposes of said petitioner, and to enable it to comply with its contracts with the said Hygeia Company; and that the petitioner would take a lease of the real estate upon which said springs were located for the term of 10 years, and gave the Hygeia Company the option to purchase at any time during said term said pumping works and machinery, at a price to be fixed by arbitrators, and other agreements in connection therewith. That upon said petition, and on January 4, 1893, an order was made by Hon. A. Scott Sloan, judge of said circuit court, fixing January 18, 1893, at 10 o'clock A. M., or as soon thereafter as counsel could be heard, at his chambers at Waukesha, as the time and place of hearing the petition, and directing that notice of such hearing be given, and notice thereof was given accordingly. That January 18, 1893, certain of said landowners moved the court to dismiss all the proceedings in said matter, including the petition, and to vacate and set aside said order made therein January 4, 1893, for the reason that it appeared upon the face of said petition that it did not state facts sufficient to authorize the court to make such an order, and that it did not state facts sufficient to give the court jurisdiction to act in the premises in the manner as prayed for in said petition. That on the same day certain other landowners appeared and filed written objections to granting the prayer of said petition, to the effect, among others, that there was no necessity for the construction and...