Davis v. La Crosse & Milwaukee Railroad

12 Wis. 16 | Wis. | 1860

By the Court,

Cole, J.

If we correctly understand the complaint in this case, it had in view two objects; first, to obtain that legal and constitutional compensation which the respondent might be entitled to receive, by reason of the taking and permanent appropriation of his land by the railroad company; and second, to obtain an injunctional order, under chapter 80, Session Laws of 1858, enjoining and restraining the railroad company, its officers, agents, and all persons claiming under the company, from running cars or locomotives over the land thus appropriated, until this compensation, and all costs are paid. Such apjeears to us to be the object and purpose of the action. We therefore cannot adopt the view taken of the case by the circuit court, and hold that it is 11 simply an action of trespass, coupled with an application for an injunction under the statute of 1858.” Tins notion that the suit is instituted to recover damages for trespass guare clausum fregit, is decisively refuted by the allegations of the complaint. It alleges in substance that the railroad company, or those claiming under it, have taken possession of the respondent’s land, (describing it); have located their railroad through and over it; are now using and occupying it, and running their cars &c., over the same; and states that the land thus taken is of the value of five thousand dollars. In the prayer for judgment, the respondent asks that the damages to his land, caused by the use and occupation of the same by the railroad company, be ascertained and assessed, and that the company may be adjudged to make compensation for such damages. These and other allegations in the pleadings, which might be referred to if necessary, fully and clearly show, that the action is not for a trespass guare clausum fregit, but that one of the objects of the suit was to obtain compensation for the property taken by the railroad company. Such being the case, it follows that the judgment recovered in the circuit court, for damages as for a trespass upon the respondent’s land, cannot be sustained. Heither do we think that the judgment can be per-mittecl to stand as a compensation for the value of tlie land taken. Assuming for tlie purposes of tlie case, that tlie spondent would not be confined to tlie statutory remedy, given bv tlie charter and tlie various acts amendatory thereof, ^ , , J but might proceed in this manner to have his land condem-lied to the use of the company, and obtain compensation therefor, then it is obvious that all parties interested in the land, or who may be entitled thereto, should be brought before the court, so that they will be bound by the judgment and proceedings. In this view, the objection that there was a defect of parties, would seem to be insuperable. We therefore feel compelled to reverse so much of the judgment of the circuit court, as relates to damages for wrongs and injuries to the land and real estate of the respondent. But the complaint shows that the respondent is entitled to an injunc-tional order, under the statute of 1858, and we therefore affirm so much of the judgment of the circuit court, as enjoins and restrains the company, and all claiming under it, from running cars or locomotives on the land and -real estate of the respondent described in his complaint, and taken and appropriated by the company, and from using such land or real estate for the purposes of said railroad company, in any maimer whatever, until compensation, together with the costs and reasonable charges of the injunction and the proceedings therein, shall be fully paid over to the persons entitled thereto. It appears from the complaint, that' the land and real estate had been permanently appropriated to the use of the company for about eighteen months, at the time the suit was commenced, and the company should either make due and just compensation for the property, or cease to use it altogether.

Note. The act of 185S, referred to in the text, was approved May 10th, and its first section was as follows: “ In all cases where at the time of the passage of this act, any railroad company in this state shall have taken or appropriated, or where any such company shall take and appropriate, for right of way, depot grounds, or for the use of such company in any manner whatever, any lands or real estate owned by any person resident in this state, and for which such person is or may be entitled to compensation from such railroad company, and such company shall have failed, neglected or refused, for six months after having taken and appropriated the same, by making and the laying of its track thereon, to make and pay such compensation to the person entitled thereto, the person so entitled, may, by writ of injunction or order, enjoin and restrain such railroad company, its officers &c., from running cars or locomotives over the land or real estate so taken or appropriated, and from using such land or real estate for the purposes of said company, in any manner whatever, until compensation, together with costs, &c., shall be fully paid over to the person entitled thereto.” — Rep.

The judgment of the circuit court is therefore reversed in part, and affirmed in part, in conformity to this opinion, but ■without costs to either party.

Dixchst, 0. J., having been of counsel in the case, was absent.