126 Wis. 14 | Wis. | 1905
“The party from whom it [land] is taken can, obviously, demand payment for no greater interest than he may have had therein. To enable the plaintiff to recover at all he must show some title. If it be a bare possession, or occupancy he ■certainly cannot demand and recover payment for the fee. . . . There can be no presumption of title in a proceeding of this kind. It must be shown, and compensation awarded accordingly.”
The decision of the case in this court turned upon the instructions given and instructions refused. The case thus reported fails to give the petition for condemnation or make any reference to it. The bill of exceptions and briefs of the respective counsel are contained in our collection of “Briefs and Gases,” vol. 13. But there is no reference therein to any ■such petition. The award of the commissioners is given, and they “appraised the damages sustained” by the plaintiff by the taking of the land specifically described at less than one ■eighth of what was- found by the jury. The bill of exceptions states that “the issue on said appeal” came on to be tried before a jury, but otherwise failed to state such issue. The -plaintiff was allowed to prove the .land he was .in possession
In Diedrich v. N. W. U. R. Co. 42 Wis. 248, cited by coun*
Under our statutes (secs. 1850, 1851) above referred to, the filing of the award of the commissioners in condemnation proceedings and the payment of the amount thereof by the-corporation as therein prescribed vest the title and exclusive use of the premises in the corporation, subject to the amount of the award being increased or diminished on appeal; and then the question of value relates back to the time of filing the award. This, in effect, has often been declared by this court. West v. M., L. S. & W. R. Co. 56 Wis. 318, 322, 323, 14 N. W. 292; Uniacke v. C., M. & St. P. R. Co. 67 Wis. 108, 29 N. W. 899; Taylor v. C., M. & St. P. R. Co. 81 Wis. 82, 51 N. W. 93; Neilson v. C. & N. W. R. Co. 91 Wis. 557, 559, 560, 64 N. W. 849; Stolze v. M. & L. W. R. Co. 113 Wis. 44, 52, 88 N. W. 919. The corporation is interested in obtaining a perfect title to the land for a reasonable compensation. Upon the amount of compensation being determined, the-owner or owners and the several persons interested in the land are only concerned with the distribution of the money so paid for the land. Consistent with the theory of the statutes, the title to the land should be determined before or at the time it so vests in the corporation. As already shown, the verified petition of the defendant company in the case at bar alleged that the plaintiff was the owner of all the lands in question. That admission has never been withdrawn nor disclaimed. The question recurs whether it was conclusive on the defend
“Whatever remedy the corporation may have had as against its admission of title was either through a timely and effectual abandonment of the proceedings, or by a seasonable application to the court for leave to amend the averment of title in the petition, which, in a proper case, we think might be allowed.”
To the same effect: G. B. & L. R. Co. v. Haggart, 9 Colo. 346, 12 Pac. 215; Peoria & R. I. R. Co. v. Bryant, 57 Ill. 473; Peoria, P. & J. R. Co. v. Laurie, 63 Ill. 264; 7 Ency. Pl. & Pr. 528, 574, and cases there cited; 2 Lewis, Em. Dom. (2d ed.) § 441.
In this last work it is said that “where proceedings are instituted by the party seeking to condemn the property, and it is alleged in the petition that certain persons are owners of the property desired, proof of title is dispensed with, and the petitioner is estopped to dispute the title as alleged in the petition.” These authorities are in harmony with the theory of our statutes and the logic of the decisions under those statutes. We must hold that the admission of the plaintiff’s title to the premises in question in the defendant’s petition for condemnation is conclusive in this action. In so far as the early cases in this court hold, or seem to hold, to the contrary, they
By the Court. — The judgment of the circuit court is affirmed.