63 Wis. 178 | Wis. | 1885
The order of the circuit court refusing to set aside an order of the judge thereof condemning land for the use of a railroad company, is a final order affecting a substantial right in a special proceeding, and is therefore appealable. R. S. secs. 1852, 3069, subd. 2; Wis. Cent. R. Co. v. Cornell University, 52 Wis. 538, and 49 Wis. 162.
The purpose of the petition seems to have been to quiet the company’s title to the land in question, under sec. 1852, E. S., on -the assumption that it had already acquired a permanent right to the same. It may be questionable whether such petition could be maintained for the mere purpose of quieting title. Where that is the only purpose, it is not perceived why a railroad company should not bring its action therefor the same as any other party. But here the respondent counterclaimed and prayed condemnation and compensation. This prayer having been granted, the question is here upon the merits.
There can be no doubt but what the company, under its charter and statutes, had the right to take and condemn the land in question for its track and road-bed. Prior to sec. 22, ch. 119, Laws of 1872, amended by sec. 4, ch. 291, Laws of 1873 (sec. 1852, E. S.), there was no general statute authorizing the owner of lands, across which a railroad had been located and constructed, to institute proceedings for condemnation. These statutes expressly prohibit any injunction to
Having yielded to the company all claim to the permanent easement except the mere right to exact and enforce payment of compensation, the question recurs, Did that right pass from her by virtue of her deed of November 6, 1880, to SPrcmge and Lawson? That deed was a conveyance of the land, and not a transfer of a claim for compensation'for an easement long prior to that time given to the railroad company. It is well established in this state that the grantee of land with such an easement upon it takes it
It is true that in Pomeroy v. C. & M. R. Co., supra,, the grantor reserved to herself the land occupied by the railroad, and the right to claim and receive any and all damages sustained by reason of the railroad crossing the land or running near it; but that was before the above statutes giving to the owner the new remedy of enforcing compensation through condemnation proceedings. Such remedy to enforce a mere claim for compensation is, in effect, the very thing that was so reserved in the Pomeroy Case, for in that case the land had in fact been condemned and the damages awarded. It is unlike Sweaney v. U. S., supra, where the conveyance to the plaintiff was prior to the statutes cited, and where no right to the permanent easement was acquired by the United States until long after such conveyance, and where the act of Congress giving such right secured to the then owner the right of compensation.
It follows that Mrs. Ladd never parted with her right to' the compensation, and Shrcmge and Lawson never acquired it. On the contrary, the company settled with Mrs. Ladd
By the Oov/rt.— The order of the circuit court is reversed, and the cause is remanded with directions to grant the petitioner’s motion to correct the findings as- asked, and for further proceedings according to law.