101 Wis. 91 | Wis. | 1898
Tbe question in this case is whether condemnation proceedings instituted by a railway corporation can be discontinued prior to tbe filing of the award and against tbe objection of tbe landowner. It was said in Morris v. W M. R. Co. 82 Wis. 541, that tbe railway company bad a right to discontinue condemnation proceedings, and Driver v. W. U. R. Co. 32 Wis. 569, and Lewis, Em. Dom. §§ 655, 656, were cited as sustaining tbe proposition. In that case tbe discontinuance was prior to tbe appointment of commissioners, and so, perhaps, it is not direct authority in tbe present case, where the attempted discontinuance was just prior to the filing of tbe award of tbe commissioners. It is generally held, however, that this fact makes no difference, and that, in tbe absence of express statutory provisions, tbe party instituting condemnation proceedings may, with tbe consent of tbe court, dismiss or discontinue tbe proceedings at any time prior to tbe filing of tbe award, or tbe confirmation of tbe award where confirmation is necessary. Lewis, Em. Dom. § 655;- 3 Elliott, R. R. § 1033. Tbe contention, however, is made that, because it is provided in R. S.
By the Oowrt.— Order affirmed.