22 Wis. 581 | Wis. | 1868
Lead Opinion
The following opinion was filed at the June term, 1867:
This is an appeal from an order overruling a demurrer to a portion of the answer. The action is to foreclose a mortgage given by the defendants Gould and wife, on the 9th day of March, 1854, to the La Crosse & Milwaukee Railway Company, to secure the payment of $2,500 ; which mortgage.has been assigned to the plaintiff. In the answer, among other matters, it is alleged that the La Crosse & Milwaukee Railway Company (to whose rights the respondent has succeeded as therein stated), in 1856, located its road across the mortgaged premises, and exercised the power conferred upon it by its charter, of taking land for the use of its road; and. after taking a strip, agreed with the persons then owning the title in fee, for a valuable consideration then paid, to convey to said company said strip of land, upon which its road has been built and constructed, and which now constitues a part of the railroad from Milwaukee to La Crosse. It alleges that the value of the strip of land thus taken for the use of the road is very small as compared with the costs and expenses of building the railroad across the same, and the improvements made thereon by the company; and that a sale of the premises, and. dispossession of the respondent therefrom, under the foreclosure action, would result in a great and irreparable injury to it. The relief asked is, that, if the mortgage is a lien upon the premises, such premises may be sold in the inverse order of alienation, and that it may be referred to a commission of court to ascertain and report the value of the premises conveyed to the La Crosse & Milwaukee Company for right of way, exclusive of the improvements made thereon by it or its successor, and that said premises may be discharged from the lien of the mortgage upon the respondents paying the value thereof, or so much as may be necessary to satisfy the mortgage debt after the application of the moneys arising from the sale of the othér portions of the mortgaged property.
When we consider the nature of the rights vested in the railroad company by its charter, the purposes for which these rights are conferred by the legislature, and the great
The company, in asking for a reference to ascertain the
By the Court. — The order is affirmed.'
Rehearing
The plaintiff moved for a rehearing; and the same was granted, and the following opinion filed, at the February term, 1868:
We have concluded that we must grant the motion for a rehearing in this case. It is not, however, because we have any doubt .as to the correctness of the opinion already filed, upon the main point in controversy, which is the right of the company to have the land taken appraised in the method pointed out by the charter, at the value it had when taken, exclusive of the improvements put upon it by the company. The reasons for sustaining this right are well stated in the former opinion, and will not be repeated.
It is said by counsel, in the argument for a rehearing, that the former opinion “ lays stress upon the provisions of the law of 1856, which provides-what compensation shall be made.” If that law is valid, and applicable to the question, it is entitled to have stress laid on its provisions; for
We do not so understand it. It is true, this court has held, in Shephardson v. R. R. Co., 6 Wis., 612, Powers v. Bears, 12 Wis., 222, and other cases, that similar provisions are inadequate to authorize a company to take and hold possession of land against the will of the owner without first making compensation. If it attempted to hold permanent possession without this, the owner was entitled to an injunction. But it has nowhere been held that if, after the company had located its route, it should then procure the appointment of commissioners, and obtain an appraisal of the value of the land taken, and tender the amount to the owner under a charter like the one in question, this would not give it the right to enter upon it and hold possession afterwards. Thus in Shephardson v. R. R. Co., 6 Wis., 612, the court says: “We are of opinion that this act, so far as it attempts to authorize the taking and use of the land of individuals by the company, without making any compensation or providing any means by which compensation can be obtained by those whose property is taken, is repugnant to the section of our constitution above cited.” This, by its terms, confines the invalidity of the act to that part of it which authorized the company to take and hold possession without making compensation. But this being conceded, it by no means follows that the mode of ascertaining the
This view is entirely in harmony with the decision in Loop v. Chamberlain, 20 Wis., 135, where this same act was to some extent in question. The counsel for the company there suggested that the act was void. But the court does not so intimate. On the contrary, it seems to assume- that the company might proceed under it and secure a proper appraisement, and then, by -tendering the amount, get the right of possession. And it held that until this was done the company was liable in trespass.
If, then, the provisions of this act prescribing the mode of appraising the value of the land, which, of course, would
I think such an exception would be fairly implied from the very nature and object of the right of eminent domain, which is delegated to these companies, as was held in the former opinion. I should be willing to rest the conclusion upon that ground alone, if necessary. Titles are often complicated ; and the proceedings to divest title must comply strictly with the statute. And it is not to be supposed that where the state delegates to one of these companies its power of em'ineñt domain, and authorizes it to take the land of individuals for the construction of great public works, it intends that in every case of failure to acquire a perfect title, the value of all the improvements constructed in the meantime should enure to the benefit of the owner. Upon the reasoning of the appellant’s counsel, if a company should enter upon land, after defective proceedings to obtain title, and build a costly depot or bridge, if it afterward became necessary to resort to’ new proceedings to ascertain the damages, the owner would be entitled to have the depot or bridge estimated according to its value, and to be paid accordingly. Such a conclusion is contrary to natural justice. It is not at all sustained by the decision in Hill v. La Crosse R. R. Co., 11 Wis., 214. It was there claimed that a railroad company should be exempt from the operation of the mechanics’ lien law; that it should be allowed to absorb the labor and materials of‘another, without being subjected to the remedies which the law gives to secure payment. Ve held that it was entitled-to no such exemption. But it is here claimed that the land owner should be
The common law rule was founded upon transactions between private individuals. It undoubtedly, in many cases, worked great injustice and hardship. This has been remedied to some extent by the law allowing one who has in good faith made improvements on real estate, believing he ' had a good title, compensation on being ousted under a better title. But without any statute establishing an exception, it ought not to be held applicable to a case involving an exercise of the right of eminent domain, in the execution of works of sufficient public interest to justify invoking that right.
I think, therefore, that the case is not only without the reason and beyond the scope of the common law rule, but that it has a statute creating it an exception.
If the conclusion were to be rested upon the statute alone, it might be necessary to show that the improvements in question were placed upon the land after its enactment. Counsel admits that such was the fact, though he says it does not appear, as I believe it does not.
But notwithstanding we adhere to the former opinion upon the real merits of the controversy, we have determined that the motion for a rehearing must be granted, for the reason that it seems to us that the facts stated do not constitute a defense. The company has not yet proceeded under its charter to obtain an appraisement. And it would seem that therefore the facts stated can at most be held ground for a stay of proceedings until those steps can be taken. The court cannot grant the relief sought until that is done. That portion of the answer seems therefore to be, strictly speaking, demurrable. And the re-argument that
By the Court. — Rehearing granted.
At the same term, without further argument, the order of the circuit court was reversed, with costs, and the cause remanded.