18 Wis. 155 | Wis. | 1864
By the Court,
The plaintiff in this case owned lands which were taken by the Sheboygan & Mississippi R. R. company for railroad purposes. Legal proceedings were had to assess the damages, which resulted in a judgment in the plaintiff’s favor, which, however, was never paid. The road and property of the company were subsequently sold on a mortgage, and purchased for the benefit of the bondholders, who organized the company that constitutes the present appellant. This action was brought to compel the new company to pay the amount of the plaintiff’s judgment for damages.
The counsel for the company contends that it is not liable, and relies on the recent decision of this court in the case of Vilas v. The Milwaukee & Prairie du Chien R. R. Co. But the case presents an entirely different question. In that case the plaintiff had consented to a conveyance of his title to the old company, so that he was left merely a general unsecured creditor. It followed that the new company which was organized by the purchasers at the mortgage sale, could not be held liable unless upon the broad rule that such purchasers organiz
And it would follow from that decision that if tbe new company here bad asserted no rights under its purchase except those which the mortgage.sale gaye as complete and perfect against all paramount claims, it would not have been liable to this plaintiff upon the mere ground that he had a judgment against the old company. But such was not the case. On the contrary it took possession of the plaintiff’s lands, and continued to run its cars over them, even in defiance of an injunction. Such a taking possession and assertion of right constituted a plain election by the new company to adopt the original taking and to receive the benefit of it. It becomes, therefore, a case for the application of the familiar maxim, qui sen-tit commodum sentiré débet et onus. The rights of the old company in the land were not paramount to those of the plaintiff, until the damages were paid. Perhaps he might have fallen back upon his original rights as owner, and treated the company as a trespasser ah initio, if it neglected for an unreasonable time to pay them. But if he did not do that, but asked only for his pay, the proceedings to condemn the land and assess the damages would stand as valid for those purposes to give the company such rights as it could get prior to payment. Then, if the purchasers under the mortgage step in and assert those rights, they must assert them subject to the condition upon which they exist, that is, the payment of the damages.
The counsel suggested that if these damages had not been paid, the company was a trespasser, and the plaintiff might have his remedy for the trespass, but it ought not to be held liable for the judgment against the old company. But certainly the old company would be estopped from setting up in answer to a claim by a land owner for damages, that it was a mere trespasser because it had already unreasonably neglected to pay those damages, and therefore the owner could only re
The appellant claims that the amount of the costs in the injunction suit, to which the appellant was also a party, and which in that suit were adjudged solely against the old company, are improperly included in this judgment. But we see no exception which raises that question.
The judgment is affirmed, with costs.