Hegar v. Chicago & Northwestern Railway Co., 26 Wis. 624

Hegar v. Chicago & Northwestern Railway Co.

26 Wis. 624 | Wis. | 1870

Cole, J.

There were two issues in this case. In respect to the piece of land first described in the complaint, the defendant set up an agreement between it and Mr. Holmes, the plaintiff’s grantor, by which Holmes promised and agreed to convey that strip of land to the defendant company; and it asked for a specific performance of this agreement. This of course was in the nature of an equitable counterclaim, to be tried.by the court.

We suppose it was irregular practice to enter judgment upon the verdict without also disposing of the other issue. There may be no necessity for submitting any question on the equitable counterclaim to a jury; and therefore, whether the verdict should be set aside and a new trial ordered, depends entirely upon the result of the trial on the issue not disposed of. Eor we are satisfied that no error has intervened which would warrant the court in setting aside the verdict upon the issue already tried. Exceptions have been taken to the rulings of the court on the trial; but we think they are all untenable. In the first place it is objected, that the court erred in permitting the witness Spright to answer the question asked him as to the yearly value of the strip of land in the village of Jefferson; because, it is said, the question and answer assume that the plaintiff is entitled to recover that value without regard to the public easement thereon. But we do not so understand the matter. The claim was, that the defendant company unlawfully occupied the east half of Catharine street abutting on *628the plaintiff’s lots, with its road-bed, ditches, etc., and that consequently the street was useless on account of these obstructions. And the question was, what was the annual value of this strip — which had' thus been unlawfully occupied — as a street, and as a means of ingress and egress to and from the adjacent lots ? The use and enjoyment of this strip for the purposes of an ordinary street or highway, might be valuable to the owner of the adjoining lot; and whatever this value was might be recovered in the action. And the object of the question was to prove this value, subject, of course, to the right of the public to use the street for the purposes of an ordinary highway.

The plaintiff proved that the defendant had constructed its road in Catharine street in front of his lots, and that its road-bed, and the ditch on the east side of the track, occupied all of the strip of land described in the complaint lying east of the center of Catharine street, except six or eight feet on the east side, not sufficient for a road, which few feet in width the company had never occupied. The defendant asked the court to instruct, the jury that the plaintiff could not recover any more of the strip of land in Catharine street than the defendant actually occupied by its track and the ditch. The court, however, refused so to charge, but did instruct the jury, in substance, that if the company so used and obstructed that portion of the street as to destroy it as a common highway, that fact was sufficient to warrant them in finding that the defendant was in possession of the whole of that part of the street. We can see no objection to this charge. Eor while the company did not actually cover with its road-bed and ditch the entire space from the center of the street to its eastern limit, yet it practically destroyed that entire space for a street. It was really in possession of that strip of ground.

The doctrine that the proprietors of lots bounded by *629a public street -within a recorded town plat or village, take to the center of the street, and own the fee subject to the public easement, is so well established in this state that it is no longer open for argument. Eor the reasons given in the first part of this opinion, the judgment must be reversed, and the cause remanded with directions to proceed and try the issue for equitable relief.

By the Court. — Judgment reversed and cause remanded with the directions above specified.