138 Wis. 1 | Wis. | 1909
Lead Opinion
The following opinion was filed February 16, 1909:
The commissioners awarded damages for the entire property described in the petition, and the appeal was from the award, neither party appealing from the order determining that it was necessary to take the whole of the land described. The appellant paid into court, in conformity with
“The object in reserving an easement to the original owners of this land must have been to procure its valuation at a reduced sum and thus save expense to the corporation. All this was very proper to be adjusted by the parties, and might be mutually advantageous to them, but I do not see that the statute authorizes land to be taken compulsorily o-n any such terms or conditions.”
In addition to the eases heretofore cited we call attention to the following: Charnly v. Shawano W. P. & R. I. Co. 109 Wis. 563, 85 N. W. 507; Crook v. First Nat. Bank, 83 Wis. 31, 52 N. W. 1131; Clausen v. Head, 110 Wis. 405, 85 N. W. 1028; Babcock v. C. & N. W. R. Co. 107 Wis. 280, 83 N. W. 316.
The main contention of appellant here is that the offers made were not by way of tendering back any of the land or interest therein taken, but for the purpose of mitigating-damages. But it seems plain that if the corporation taking could, after it had taken the exclusive use and gotten possession of it under condemnation proceedings, tender back rightsr easements, uses, or conveniences in lieu of damages or value,, it would be indirectly, .if not directly, permitted to evade payment in the manner which the constitution and statutes require. So we arrive at the conclusion that the only crossings which could be considered upon the trial below were
Counsel for appellant favors us with some authorities which appear to hold a different doctrine, and at least lean to the idea that rights and privileges may be tendered by the corporation taking in mitigation of damages. But in so far as those cases are out of harmony with the rule laid down in this opinion we cannot follow them. We think the policy of this court thus far has been to hold to the contrary, as shown by the cases heretofore cited, namely, that after the land of the owner is condemned the compensation must be made for the damages, and only in the way pointed out by the statutes. In Sprague v. N. P. R. Co. 122 Wis. 509, 100 N. W. 842, this court held that after the award the railway company could not discontinue because under the award title vested in the
“It is the policy of the state, as evidenced by the statute, to give railroad corporations extensive powers for acquiring real estate for corporate uses, but such powers should he exercised in good faith, on occasions when the interests of the public and of the corporations are to be promoted by it. It is upon these considerations that the right is granted to these corporations of taking all necessary real estate at its fair market value, regardless of the wishes of the owner, who must yield to the necessities of the public undertaking. If the right is asserted and established by the condemnation, and prosecuted to the point of ascertaining the amount of the award, and the railroad company is permitted to elect to abandon the proceeding or not after such award, upon the ground that it cannot secure the property at its own price, it might readily transpire that the owners would be subjected to many hardships, and their rights might be seriously interfered with. We must hold that the proceeding cannot be dismissed after the commissioners’ report has been filed with the clerk of the circuit court.” «
Other authorities supporting the conclusion arrived at are 15 Cyc. 783; Petition of N. Y., L. & W. R. Co. 49 Hun, 539, 2 N. Y. Supp. 478; Old Colony R. Co. v. Miller, 125 Mass. 1; 2 Lewis, Em. Dom. (2d ed.) § 505; Roanoke City v. Berkowitz, 80 Va. 616; Oregon S. L. R. Co. v. Fox, 28 Utah, 311, 78 Pac. 800; Van Horne’s Lessee v. Dorrance, 2 Dall. 304.
It is claimed that the court erred in refusing to receive an option held by appellant for the purchase of a tract of land west of the plaintiff’s plant for $2,327 from the Bain estate. The condemned strip having taken a part off the side of the
There is another class of errors which may, we think, be conveniently treated together, because they go to the question of amount of damages and whether excessive. As will be ■seen from the statement of facts, the appellant requested that •certain questions be submitted in the special verdict, which were refused, and the court submitted as the verdict two questions. It is difficult to see how the jury could have answered these questions as they did without duplicating the damages. Had the court submitted the questions asked by the appellant the verdict would not be open to objection of duplicity. The first question proposed simply asked for an answer as to market value of the land taken March 3, 1906, and the second as to how much the market value of the remaining land of plaintiff was diminished by the taking of the strip, considering the uses to which such land was put on March 3, 1906. It is plain that any answer to these questions could not result in duplicating damages. But how about the questions submitted? In the first the jury were asked to find the fair market value on March 3, 1906, “considering said strip as a part of plaintiff’s entire tract and premises as used in his business in question.” And in the -second question they were asked to find the fair market value ■of the remainder of the plaintiff’s premises not so taken de
Moreover, in connection with the form of the verdict, certain evidence admitted under objection was well calculated to unduly enhance damages. Witnesses were permitted, against appellant’s objection, to answer questions respecting the value of the land taken, “considered as an integral part of the entire plant and property,” and the value of the strip taken “as a part of the entire plant and manufacturing site belonging to the plaintiff, including the machinery and fixtures, considering the plant as an entirety, and including fixed machinery and fixtures.” These, and other similar questions permitted to be answered as to the value of the strip
Tbe findings of the jury also clearly show, when viewed in tbe light of tbe evidence, that it did in fact include in tbe value of the strip taken damages to tbe other land. Tbe quantity of land taken was about 2.3 acres, and the witnesses under the form of questions asked put tbe value at from $35,000 to $60,000, tbe jury finding tbe value of tbe strip taken under tbe first question of tbe special verdict, $25,000; yet tbe evidence establishes that tbe strip taken, disconnected from tbe balance of tbe plant and business, would not exceed one tenth of tbe award allowed by tbe jury for it. Tbe strip taken was not occupied by any buildings, except a foundation constructed shortly before tbe petition for condemnation was filed. It was situated between the main plant and tbe testing track, and took a small portion of tbe testing track. So it is plain that tbe jury, in awarding damages for tbe strip taken, included in such award a portion of tbe damages included in tbe award of damages to the remainder of the land and premises, and yet under the second question they were required to award- all damages done the remaining premises.
At the time tbe condemnation proceedings were commenced there was an easement for railway purposes between the plaintiff’s testing track and the balance of tbe land, and a part of tbe strip taken lapped over upon this easement or right of way, wbicb is known in this case as tbe Newell-Hoyt easement, and this easement separated tbe main part of the plaintiff’s plant from tbe testing track and therefore was an important consideration on tbe question of damages to tbe balance of tbe plant not taken. Upon this point tbe appellant requested the court to instruct tbe jury as follows:
“You are instructed that on tbe 3d day of March, 1906, a right of way, or easement, as it is called, belonged to Mrs. Newell and Mrs. Hoyt, to build and maintain a track, or*19 tracks, across tbe premises of plaintiff upon a strip of land twenty feet wide, tbe center of wbicb strip was 341.9 feet west of tbe west line of Charles street, and wbicb ran north and south through said premises in a straight line after leaving tbe end of the curve in tbe spur tracks shown on tbe map, marked ‘Plaintiff’s Exhibit E,’ and to' cause to be transported property in cars along such tracks. Tbe right of tbe owners of this easement so to occupy and use said strip' was paramount to any right of tbe plaintiff to cross such strip or to use tbe surface thereof for any purpose whatever.”
This instruction was calculated to bring to tbe attention of tbe jury tbe fact that along tbe condemned strip there existed an easement wbicb necessitated tbe keeping of this strip open and unobstructed for tbe passage of cars. Tbe fact that this easement existed should have been submitted to tbe jury upon tbe question of damages. The court not only refused to give the instruction requested respecting tbe Newell-Hoyt easement, but sent tbe case to tbe jury upon tbe theory, so far as we can discover from tbe record, that no such easement existed. This we think was error. Whether tbe strip taken by appellant cut tbe plaintiff’s land so as to separate tbe main part from tbe testing track, or whether an easement existed at tbe time condemnation proceedings yrere commenced wbicb would in whole or in part have tbe same effect, was a most important consideration for tbe jury. The easement secured tbe right to Mrs. Newell and Mrs. Hoyt as well as to plaintiff to use this strip of land for tbe passage of cars. The request to charge to tbe effect that they bad a paramount right to this strip was not technically correct, because tbe proof shows that the use by them was in common with tbe plaintiff, there being mutual covenants in the deeds between the parties for use by each. But some instruction along the line asked should have been given. Tbe importance of some instruction on the subj ect is intensified by the proof admitted. Eor example, evidence was admitted, over objection and exception, of the value per square foot of tbe plant, and the idea of ex
Since there must be a new trial We have referred only in a general way to many of the alleged errors in so- far as may be helpful to the court below on another trial, without intending to cover in detail all points raised in the record.
It is also claimed that the damages are excessive. The duplication of damages arising from the manner in which the ease was presented to the jury, including the form of the verdict, doubtless accounts for the size of the verdict. Whether w© would set the verdict aside as excessive if the case had been properly presented and no error appearing in the record we need not determine, since the judgment must be reversed upon other and more obvious grounds.
By the Court. — The judgment of the circuit court is reversed, and the action remanded for a new trial.
Concurrence Opinion
The following opinion was filed March 3, 1909:
(concurring). In my opinion the final result of the appeal is right, but the ground upon which it is
Sec. 1848, Stats. (1898), provides that in a case of this kind the commissioners shall appraise . . .
(1) the value of each . . . parcel of land proposed to be taken with the improvements thereon, and
(2) the damages sustained by the owner by reason of the taking thereof, and that they shall
(3) not make any allowance or deduction on account of any real or supposed benefits to the proprietor from the construction of the road, but
(4) special benefits to real estate “adjoining that taken” shall be allowed in deduction of any damages ... to such adjoining real estate.
The value of land taken is required to be fixed with reference to the. market value for any purpose to which it may be adapted so far as appears presently to affect such value. Washburn v. M. & L. W. R. Co. 59 Wis. 364, 373, 18 N. W. 328. That includes adaptability to be platted into lots to be sold for building purposes, the use to which it is intended to be applied, and every use for which it is adaptable, present or future, enhancing the present value. Watson v. M. & M. R. Co. 57 Wis. 332, 356, 15 N. W. 468; Meinzer v. Racine, 74 Wis. 166, 169, 42 N. W. 230.
The amount to which the landowner is entitled on account of the land taken is its fair market value for any purpose for which it may reasonably be used presently or in time so near as to appreciably affect such value. Watson v. M. & M. R. Co., supra, p. 356, 15 N. W. 479.
In the whole, the landowner is entitled to be made as good, by payment of money, as if his property were not disturbed by the railroad enterprise, not considering benefits or damages caused by the building of the road disassociated from physical disturbance of the property, except by offsetting special benefits to land not taken against damage to such land.
As regards the value of tbe land taken in a case of this kind, sucb value is “tbe market value of tbe strip taken, at tbe time it was taken, as a part and parcel of tbe lot of which it formed a part.” Tbe jury were so instructed in Esch v. C., M. & St. P. R. Co. 72 Wis. 229, 39 N. W. 129, and tbe charge was in all respects approved. Tbe court said:
“When tbe jury, in obedience to tbe instructions given, assessed tbe value of the strip taken as a part of tbe whole lot, and as a parcel of tbe same, and determined the damage suffered by the plaintiff by reason of tbe taking to tbe balance of tbe lot not taken, these two amounts, added, -would give tbe plaintiff’s compensation precisely as the rule was laid down by tbe trial court in tbe Watson Case [57 Wis. 357, 15 N. W. 468], which was approved by this court.”
Tbe court submitted to tbe jury two questions: Rirst. “What was tbe market value of tbe strip taken at tbe time of the taking . . . considered as a part and parcel of tbe lot of which it was a part?” Second. “What was tbe damage to the market value of the residue of tbe lot” at tbe time of the taking ?
In Barker v. M. & L. W. R. Co. 59 Wis. 364, 18 N. W. 328, decided with Washburn v. M. & L. W. R. Co., supra, tbe trial court refused to admit evidence of tbe value of tbe strip taken as a part of tbe whole lot, bolding that tbe value of tbe strip was to be ascertained without reference to- tbe balance of tbe lot, tbe same as though some other person owned it. Ror that reason tbe landowner prevailed on tbe appeal. 59 Wis. 375, 18 N. W. 333. In disposing of tbe matter tbe court said:
“It was argued that unless tbe rule of tbe circuit court be adopted, tbe enhanced value of tbe part taken, if considered as a part of tbe lot, may be assessed as damages for depre*23 ciation in tbe value of tbe portion of tbe lot not taken. Tbe danger of a double assessment can, we think, be readily averted by a proper instruction in that bebalf. It is a substantial right of tbe plaintiff to recover directly the full value of tbe land taken, because there can be no diminution therefrom , on account of benefits. Whereas, if such value is included in tbe assessment for tbe depreciation of tbe value of tbe balance of tbe lot resulting from such taking, the whole amount thereof is liable to be absorbed by an assessment for benefits.”
So it will be seen that in tbe Watson Case and tbe Esch Case tbe court approved submission to tbe jury of tbe case to find, first, what was tbe market value of tbe strip of land taken, at tbe time it was taken, as a part and parcel of tbe whole lot of which it was a part; second, what was tbe damage to tbe market value of tbe residue of the lot, in consequence of such strip being taken; and in tbe Washburn Case, because tbe court refused to submit tbe first feature in tbe form indicated tbe result was reversed. Now let us see bow. the decision here stands with reference to that situation.
Tbe court submitted to tbe jury to find, first, What was tbe fair market value on March 3, 1906, of tbe strip of land condemned and taken for defendant’s use, considering said strip as a part of plaintiff’s entire tract and premises as used in bis business in question ?
That for short is this: What was tbe fair market value on March 3, 1906, of tbe strip of land taken considered as a part of tbe whole tract of which it formed a part? Now it seems no one could read that question and tbe decisions to which I have referred, without seeing clearly that the learned trial judge either bad tbe decisions before him when tbe question was drafted or bad that clearly in mind. Tbe form follows what was there approved as necessary with strict accuracy.
Tbe next question is this: “In what amount was tbe fair market value of tbe remainder of plaintiff’s premises in
What we have said as to the first question may be regarded as repeated as to the second. Court and counsel evidently relied, as well they might, on decisions of this court setting the matter at rest a quarter of a century ago, which has never since been cast into doubt in the slightest particular.
This court now says, “It is difficult to see how the jury could have answered these questions as' they did without duplicating damages.” Is that not just the opposite from what this court said, speaking by LyoN, J., in the Washburn Case we have quoted from ? Again the court says, “Had the court submitted the questions asked by appellant the verdict would not be open to objection of duplicity.” Turning to the questions referred to, I find the first to be: “What was the market value on March 3, 1906, of the strip of land condemned and taken in these proceedings ?” omitting: considered as a part of the whole lot from which it was taken; the very defect which worked a reversal in the Washburn Case and was said to be out of harmony with the previous case (Watson v. M. & M. R. Co. 57 Wis. 332), as it evidently is with the subsequent case of Esch v. C., M. & St. P. R. Co. 72 Wis. 229. The second question as the court approvingly states it is this: “In what amount, if any, was the market value of the real estate of the plaintiff which was not taken diminished by the talcing of the strip so condemned in view of and considering only the uses to which such real estate was put on said 3d day of March, 1906 ?” Thus confining the value to the particular use characterizing the land at the time of the taking, excluding future uses that might enhance the value, directly contrary to all the cases we have cited and the universal current of authority in this and other courts; excluding elements essential, as- this court has said, to afford the landowner that full and just compensation to which he is entitled under the constitution.
I note that this court, very guardedly, suggests that if the first question submitted had omitted the words “as used in his business in question,” perhaps it would not have been subject to criticism under the rule laid down in the cases to which I have referred, thus, seemingly, not intending to invade such rule, but suggests that a question drafted in exact accord with it might not be subject to criticism, and at the same time proclaims that a question submitted and rejected, omitting the element expressly required by such rule, should have been submitted. The words “as used in his business” were in exact conformity to the rule that the present use of the strip in common with the whole of which it forms a part as well as any use, prospective, affecting the value, are proper elements of value.
True, as suggested by Justice LyoN in the Washburn Case, there is danger of a duplication of damage in such a case, but as the court said, “The danger . . . can be readily avoided by proper instructions in that behalf.”
It was there held that questions of the full scope submitted here, were essential to protection of constitutional rights and that the danger of one overlapping the other was to be obviated by instructions.
The learned trial court had this court’s suggestion last referred to clearly in mind. The jury were carefully in
“In determining the- value of. the strip taken you will be-careful not to confound such value with any damages, if any, to the remainder of the premises occasioned by such taking; and in determining the damages^ if any, to the remainder of' the premises not taken you must not include any valuation-fixed by you of the strip- taken. The two elements of damage are separate and distinct from each other.”
What more could one ask ? An examination of the briefs and cases heretofore submitted in cases, fails to disclose an instance where danger of duplication of damages was more carefully guarded against by the verdict and the charge than in this case. I think the submission in that regard was-faultless.
Notwithstanding the distinguished correctness of the submission, I am satisfied from the size of the verdict and the evidence that the jury either failed to profit by the court’s careful admonishment as to duplication of damages, or plainly disregarded the evidence. The evidence of the witnesses upon which the jury grounded its finding, plainly duplicated the damage. The opposing evidence did not. That is the explanation of the difference being so great as not to be attributable to mere differfence in judgment applied from a common standpoint. I will not take time to go into the evidence. It is sufficient to thus state my conclusion.