9 Wis. 450 | Wis. | 1859
By the Court,
This is a bill filed by the respondent, to prevent the railroad company and its agents from taking possession of, and filling up a portion of two lots in the city of Janesville, on which the respondent resides, and to which he claims title. The facts appearing from the pleadings and proofs are these; the company having the right to take land for its track to the width of one hundred feet, and beyond that, so much as was necessary for depot and other
Now, in this suit the respondent sets up the right to all that part of the lots lying beyond the one hundred feet taken for the track, on the ground that it was not necessary to be taken for any of the purposes for which the company was authorized to take such outside land. And to sustain this right, he introduced proof that the company had located its depot buildings elsewhere, and to the effect that these lots were not necessary for wasting earth, or any other proper purposes of the company.
On the other hand, the company introduced some proof that they might be used for depositing coal, lumber, and other freights upon. But whether a party, whose lands are condemned by a railroad company for purposes for which they may take land beyond the one hundred feet, can, in any case, contest before a jury the necessity of such taking, is a question we do not deem it necessary to decide. For even con-ceeding such right, we think the respondent is estopped by his own acts, from contesting it in this case. If he might have contested it, he did not, but acquiesced in the taking.
It was urged that he resisted the whole proceeding, because he appealed from the award of the commissioners. But this was no more a resistance to the taking, than it would have been, had he accepted their award without appeal. The necessity or propriety of the taking could not be determined on
When the company condemned his entire lots, conceding his right to contest the necessity of taking them, there were two courses, either of which he might pursue. 1. He might institute such proceeding as was proper, to contest the right to take, and might by the judgment of the proper tribunal, have confined the taking to such land as the company might lawfully take. Or if he did not chose to do this, he could acquiesce in the taking, either by accepting such amount as he could agree on with the company; or by accepting the award of the commissioners; or, if dissatisfied with that, by appealing from their award, recovering such judgment as he could, and accepting the amount of such judgment. And either of these three methods of accepting the compensation, is an acquiescence in the taking. He had his eleetion therefore either to contest the right to take, or submit to the taking and receive his pay. But he could not do both. Here he elected to submit and take his pay for the whole land. After doing that, he is estopped from contesting their right to take it. A man might as well sue another for trespass in taking personal property, and after having recovered a judgment for its value and received the money, then turn around and sue to recover the property on the ground that the trespasser had no right to take it.
We do not think therefore that this plaintiff was in a condition to raise the question whether the land was properly
We think the respondent stands in no better position than as though he had conveyed the lots to the company by deed and received his pay, and then sought to reclaim them by this proceeding.
We think the principle of the case is similar in all respects to that of Embury vs. Conner, 3 Coms., 511, and that the respondent by recovering and accepting the judgment for the value of the entire lots, must be held to have acquiesced in the taking of them.
By the charter of this company, upon their paying or tendering the damages awarded by commissioners or adjudged on appeal for land taken, the title vests in the company in fee simple. And the respondent having accepted the amount,we think the case stands as it would if he had given a deed. And in either case the title would vest in the company, subject to the right of the state to proceed against it if it had violated its charter. But the individual who had received his pay could not raise that question for the purpose of reclaiming the property. See Rutland and Burlington R. R. Co. vs. Proctor & Odell, 29 Verm., 93; The Banks vs. Poitiaux, 3 Rand., 136; Barrow vs. Nashville and Charlotte Turnpike Co., 9 Humph., 304; The People vs. Mauran, 5 Denio, 389; Leazure vs. Hillegas, 7 Serg. & R., 313; Baird vs. Bank of
The judgment of the court below must be reversed and the cause remanded, with directions to enter a judgment dismissing the complaint.
