Wooster v. Sugar River Valley R. Co.

• Decision Date: 04 April 1883
• Citation: 15 N.W. 401,57 Wis. 311
• Parties: WOOSTER v. SUGAR RIVER VALLEY R. CO.
• Court: Wisconsin Supreme Court

57 Wis. 311

15 N.W. 401

WOOSTER

v.SUGAR RIVER VALLEY R. CO.

Supreme Court of Wisconsin.

Filed April 4, 1883.

Appeal from circuit court, Green county.

The defendant company located its line of railroad across lands of the plaintiff, and on its petition commissioners were duly appointed to appraise the damages resulting therefrom. The petition states that the plaintiff is the owner of the land, and that one E. Bowen has, or claims to have, a mortgage thereon. The commissioners assessed the value of the land taken at $65, and the damages by the reason of the taking thereof at $50. They then apportioned the same between the plaintiff and Bowen, awarding to the former $35.52, and to the latter $79.48. The plaintiff appealed from the award, and upon a trial of the appeal in the circuit court the jury assessed the value of the land taken at $80.50, and the depreciation in the value of the balance of plaintiff's farm, by reason of the railroad being located through it, at $700. A motion for a new trial was denied, and judgment was entered for the plaintiff pursuant to the verdict. The defendant--the railroad company--appeals from the judgment. The case, so far as necessary to an understanding of the errors assigned, is further stated in the opinion.C. N. Carpenter and Winans & Fethers, for respondent, Charles D. Wooster.

A. A. Jackson and H. Medbury, for appellant, the Sugar River Valley Railroad Company.

LYON, J.

The judgment makes no provision for the payment of any portion of the award to Bowen on account of his alleged mortgage. Upon this omission error is assigned. The appeal to the circuit court opened the whole case as between the parties to the appeal. The report of the commissioners was not evidence either that the plaintiff was the owner of the land, or that Bowen had a mortgage interest therein. On the trial in the circuit court the burden was upon the plaintiff to show that he owned the land sought to be condemned, and upon the defendant company to show that Bowen had a mortgage interest therein. The plaintiff proved his title, but the defendant failed to prove the alleged interest of Bowen. Thus far, therefore, it does not appear that any deductions should be made from the amount recovered by the plaintiff on account of the alleged mortgage of Bowen. Had the railroad company desired to litigate on the trial the question of Bowen's interest, it should have applied to the court to make him a party to the proceeding, or, at least, it should have shown that he had a then subsisting interest in the land, in which case (Bowen not having appealed) probably the court would have directed the sum awarded him by the commissioners to be paid to him out of the amount recovered in the action. More than this, no good reason is perceived why the defendant may not pay the amount of the...