| Wis. | Dec 30, 1861
By the Court,
However much we might be inclined to yield to tbe argument of counsel were tbe question a new one, it is too well settled to allow it now to be drawn in dispute before tbis court, tbat the proprietors of lots bounded by a public street witbin a recorded town plot or village, take to tbe center of tbe street and own tbe soil subject to tbe public easement. Kimball vs. Kenosha, 4 Wis., 321" court="Wis." date_filed="1856-06-15" href="https://app.midpage.ai/document/kimball-v-city-of-kenosha-6597331?utm_source=webapp" opinion_id="6597331">4 Wis., 321; Goodall vs. Milwaukee, 5 id., 32; Milwaukee vs. Mil. & Beloit R. R. Co., 7 id., 85; Mariner vs. Schulte, 13 id., 692.
Upon questions of tbis nature we shall make no attempt to produce new arguments to sustain or overthrow our own decisions already made. Our intention is to rest on them, as far as they go, as absolute and incontrovertible authorities.
It being established that tbe proprietor of tbe adjacent lot owns to tbe center of tbe street, subject only to tbe right of tbe public to occupy and use tbe land as an ordinary highway, tbe conclusion of tbe court of appeals in Williams vs. Central R. R. Co., 16 N.Y., 97" court="NY" date_filed="1857-09-05" href="https://app.midpage.ai/document/williams-v--the-new-york-central-railroad-company-3624568?utm_source=webapp" opinion_id="3624568">16 N. Y., 97, tbat a railroad company cannot appropriate and occupy it with tbe track of its road without tbe consent of such proprietor, or without compensation made to him, and tbat neither tbe legislature nor tbe municipal authorities have any power to dispense with such compensation, seems irresistible. I will not attempt to treat a question which is there discussed at length and with so mucb ability. The authorities are fully reviewed and tbe subject exhausted; and bad I tbe vanity to suppose myself capable of throwing new light upon it, which I have not, the amount of business that now occupies my attention would prevent. Tbe reason is stated in few words by Chief Justice Shaw in the case of the Inhabitants of Springfield vs. Connecticut River Railroad Company, 4 Cush., 71. “The two uses are almost, if not wholly, inconsistent with each other; so that taking the highway for a railroad will nearly supersede the former use to which it bad been legally appropriated.” Tbe dedication to the public as a highway enhances the value of the lot and renders it more convenient and useful to the owner. The use by the railroad company diminishes its value and renders it inconvenient and comparatively useless.
So far as the judge below placed his decision on the ground' that there was no necessity of appropriating the street to the use of the railroad, because there were other adjoining lands which could be as conveniently occupied for that purpose, he was clearly in error. The propriety of taking property for public use is not a judicial question, but'one of political sovereignty, to be determined by the legislature, either directly or by delegating the power to public agents, proceeding in such manner and form as may be prescribed. The People vs. Smith, 21 N.Y., 595" court="NY" date_filed="1860-06-05" href="https://app.midpage.ai/document/people-ex-rel-herrick-v-smith-3587214?utm_source=webapp" opinion_id="3587214">21 N. Y., 595. Whether the company should appropriate this particular piece of land dr that to the use of the road, was therefore, under their charter, a matter which was committed entirely to their discretion; and the logic of the county judge, if good for anything, would be sufficient to defeat the company’s location of the line of their road in ninety-nine cases out' of every hundred; for in about that proportion of instances, the land selected is not so indispensably necessary that some other might not be taken without very great inconvenience.
It seems that the past damages, or those occasioned by the trespass, might have been assessed by the court (Williams vs. Railroad Co., supra); or thejudge might perhaps have order-eda jury for that purpose ; but the permanent damages, or those which would accrue to the plaintiff by the continued use of the land by the company, can only be ascertained in the manner prescribed by the statute. Davis vs. La Crosse & Milwaukee R. R. Co., 12Wis., 16; Pettibone vs. Same, [ante, p. 443.]
Judgment affirmed.