Peters v. Chicago & Northwestern Railway Co.

| Wis. | May 15, 1917

Marshall, J.

The respondents had authority to construct their track and maintain and use the same on the street upon which, plaintiff’s property abutted, and “in the immediate vicinity” of such property, under sub. (5), sec. 1828, Stats., subject to see. 1836, Stats., conditioned upon rendering to him just compensation as to any of such property taken and, in addition, such compensation for any consequential damage suffered by him by reason of any impairment of his rights appurtenant to such property secured to him by see. 1296a-, Stats. No ordinance of the city of Wau-kesha could authorize more so as to impair such right.

Appellant claims the complaint states a cause of action for redress for a wrong committed by respondents in having trespassed upon his property and to restrain them from continuing to trespass thereon; but it seems that the pleading does not show, expressly or inferentially, that he is the owner or in possession of the land in the street, on which the tracks exist. Without such ownership or possession, there could be no trespass upon his property, though there might be a violation of his right appurtenant thereto. The complaint seems to expressly negative any such ownership or possession by the language charging that the “Minneapolis, St. Paul & Sault Ste. Marie Railway Company did commence, and actually construct, railroad tracks in and along . . . Harrison street and across White Rock avenue, and in the immediate vicinity of the premises owned by this plaintiff, and which said premises do front and abut on White Rock avenue and Harrison street.”

Giving to the quoted language the most liberal construction which it will reasonably bear, in view of other language of the pleading to the effect that respondents’ acts were in violation of appellant’s rights under sec. 129 Ga entitling him to an unobstructed street for its full width in front of his property, the charge is that respondents constructed their track in front of appellant’s property on the far half of the street. Such an occupancy did not take any of his property. It merely interfered with a right incident to the ownership on his side of the street up to the center line thereof; an interference resulting in consequential damages only, which, the railroad being a lawful structure, would be damnum absque injuria if it were not for the statutory right to recover therefor conferred by sec. 1296a, Stats. The subject is fully covered in Kuhl v. C. & N. W. R. Co. 101 Wis. 42" court="Wis." date_filed="1898-11-01" href="https://app.midpage.ai/document/kuhl-v-chicago--northwestern-railway-co-8186043?utm_source=webapp" opinion_id="8186043">101 Wis. 42, 77 N. W. 155. This seems to be a mere action to restrain the further infliction of consequential damages to plaintiff and to recover such damages already inflicted.

While we have thus briefly discussed the question of whether the wrong to appellant disclosed by the pleading is a trespass by a taking of property owned by him, or a mere invasion of a right appurtenant thereto which is remediable, because the wrong was denominated a trespass in the complaint, and counsel on both sides gave much attention to the matter as if it were of vital consequence, it is immaterial, since, in either case, this action would lie if appellant did not waive the remedy invoked 'by consenting to respondents’ occupancy of the street subject to his right to compensation. If he did, then the remedy therefor is by condemnation proceedings under sec. 1852, Stats. Frey v. D., S. & A. R. Co. 91 Wis. 309" court="Wis." date_filed="1895-11-08" href="https://app.midpage.ai/document/frey-v-duluth-south-shore--atlantic-railway-co-8184964?utm_source=webapp" opinion_id="8184964">91 Wis. 309, 64 N. W. 1038; Kuhl v. C. & N. W. R. Co. 101 Wis. 42" court="Wis." date_filed="1898-11-01" href="https://app.midpage.ai/document/kuhl-v-chicago--northwestern-railway-co-8186043?utm_source=webapp" opinion_id="8186043">101 Wis. 42, 77 N. W. 155; Cronin v. Janesville T. Co. 163 Wis. 436" court="Wis." date_filed="1916-05-23" href="https://app.midpage.ai/document/cronin-v-janesville-traction-co-8192098?utm_source=webapp" opinion_id="8192098">163 Wis. 436, 158 N. W. 254.

It is suggested that the complaint sets forth a cause of action on express contract, in that it is alleged that appellant desisted from protesting against construction of the track upon being assured that he would be “compensated for the taking of such street and any damages sustained” by him. But it is quite clear that the action was not .to recover on such a contract. Oompensation of that sort would involve an acquirement of the right to the interference with plaintiff’s property or right appurtenant thereto, while the purpose sought here is to recover past damages and prevent further damages by compelling respondents to desist from maintaining the track. If there were such a contract, as the one alleged, appellant repudiated it by prosecuting this action, in effect, for a removal of the track. It seems that the allegation as to compensation and appellant desisting from protesting upon assurance thereof, was inserted to indicate that he did not waive the particular remedy and elect to rely upon that of condemnation, by consenting to the construction ancL maintenance of the track.

The trial court evidently came to the conclusion that appellant consented to respondents’ act and chose to rely upon his right to the compensation therefor, which he was entitled to by law and. which is recoverable in condemnation proceedings, and so waived the right to prosecute such an action as this. It seems that such consent and.waiver appears quite clearly by the pleadings. Respondents knew that if they invaded appellant’s property, or violated a remediable right appurtenant thereto secured to him by the written law, they were bound to compensate him therefor, and the only reasonable inference, under all the circumstances, is that their assurance of compensation had reference thereto, the amount to be paid, unless agreed upon, to be awarded, in due course, in the statutory way. • When the assurance was given, it is alleged that appellant “made no further protest until after defendants, railway companies, commenced to operate trains over the highways.” That is to say, relying upon his attitude of consenting by ceasing to protest, they, without first making compensation to him, continued construction of the track to completion and put the same to use by operating trains thereon and that then he commenced this action, among other things, to compel them to remove the track.

It seems that the situation thus created satisfied the principle of the cases before cited. Out of the circumstances, by force of the statute, there arose an implied contract on respondents’ part to pay appellant his legal damages, determinable in condemnation proceedings, unless agreed upon, and in no other way. In the words of Kuhl v. C. & N. W. R. Co. 101 Wis. 42" court="Wis." date_filed="1898-11-01" href="https://app.midpage.ai/document/kuhl-v-chicago--northwestern-railway-co-8186043?utm_source=webapp" opinion_id="8186043">101 Wis. 42, 77 N. W. 155, “The assent waived the tortious taking, if there were such, and an obligation in the nature of an implied contract between the parties arose from the situation, — on the one part to pay the legal damages caused to plaintiff’s land by the construction of the road, and on the other, to accept the same in full for the permanent right to maintain such road as regards its effects upon plaintiff’s lands,” — a-mere “chose in action” enforceable, if necessary, by the special remedy provided by statute. Express or implied consent to the appropriation by railroad companies of land, or rights appurtenant thereto, as in this case, is a relinquishment of the thing appropriated and acceptance of the legal compensation therefor, with the special remedy incident thereto. Thereby the very foundation of a trespass action becomes impossible, rendering the doctrine of trespass, continuous trespass, and nuisance actions inapplicable to the situation thus created.

It follows that the demurrer to the complaint was properly sustained.

Notwithstanding the result of this appeal, the action need not necessarily be dismissed. As held in Cronin v. Janesville T. Co. 163 Wis. 436, 440, 158 N. W. 254, under' sec. 28366, Stats. 1913, the trial court should permit the plaintiff, by proper amendment within a reasonable time, costs being in the discretion of the court, to turn the action into a proceeding for condemnation, and to prosecute the same as if regularly commenced, and render a judgment of dismissal only on neglect to so amend.

By the Court. — The order is affirmed, and the cause remanded to the circuit court for further proceedings in accordance with this opinion, one bill of costs to be taxed in each case.