210 Wis. 695 | Wis. | 1933
The appellants claim (1) that the condemnation proceedings are wholly void for want of allegation in the petition and for want of proof that the premises to be
(1) Sec. 32.02, Stats., provides for condemnation of land “in case such property cannot be acquired by gift or purchase at an agreed price.” It is said in Milwaukee v. Diller, 194 Wis. 376, 383, 216 N. W. 837, that “this provision . . . has been generally held by the courts to be a very material provision and valuable to the property owners,” and it is there indicated that inability to procure by purchase at an agreed price must appear from the record in order to confer jurisdiction. However, no consent to the proceeding was expressed by the landowner in that case and the statement must be taken as only indicating that inability to procure by purchase is essential to jurisdiction in absence of the express consent of the owner to the prosecution of the proceedings. As stated in the Diller Case, supra, the provision is for the benefit of the owner, and if he sees fit to appear and expressly consent to proceed without compliance with the provision respecting inability to purchase at an agreed price, no reason is perceived why he may not do so. The court has jurisdiction to condemn lands to widen streets and acquired jurisdiction of the persons of the owners of the land by their express appearance and consent to proceed to condemn, and by this consent the petitioner by implication conferred jurisdiction to acquire the land of which the appellants were the owners. The appearance and consent referred to was in writing signed by all of the appellants. The appellants thereby “entered, jointly and severally, their appearance” in the condemnation proceedings and thereby “con
. We are of opinion that the appellants by their appearance and express consent to the determination of necessity by the jury admitted the inability to purchase the land at an agreed price, and cannot now be heard to object either to absence of an allegation to that effect in the petition or to the absence of proof thereof in the proceedings before the jury or upon the appointment of commissioners.
(2) Sec. 281.04, Stats., provides for the filing of a notice of the pendency of an application to condemn lands to widen a street, and that neglect to comply with this provision shall render the proceeding void. This notice is intended for the benefit of persons acquiring the property or some interest therein after the commencement of the proceedings. As to any such person not having knowledge of the proceedings at the time his interest was procured or derived, the proceedings are void. But the absence of such filing cannot operate to render the proceedings void as to parties who appeared in the proceedings and consented thereto and participated therein, as did the appellants. The doctrine of “lis pendens has no application as between the parties to the action.” 38 Corp. Jur. p. 55. Upon like reason the same rule should apply to proceedings not actions in the strict sense of the word, although the condemnation proceedings, after they reach the circuit court, are considered as actions. Sec. 32.11, Stats. The doctrine “will not be given effect when the reasons which give rise to it do not require its enforcement.” 38 Corp. Jur. p. 9.
(3) The petition, the adjudication of necessity, and the award of the commissioners all describe the property involved as the entire parcel owned by the appellants, but a map accompanying the petition clearly shows that only eighty-two and a half feet of it was contemplated to be and
By the Court. — The order of the circuit court is affirmed.