77 Wis. 653 | Wis. | 1890
The nature of this action will be learned by reference to 72 ~Wis. 471, where the case, on a former appeal, is reported. The cause now comes to this court on the question as to what is the proper rule of damages applicable on the admitted facts. This court has often affirmed the rule that the owner whose lands are taken for the use of a radway is entitled to receive the actual value of the land taken, and such other damages as he might sustain to other adjoining property which is directly attributable to the construction, maintenance, and operation of the railway across his land as located. This, in substance, is the rule as stated in Blesch v. G. & N. W. R. Co. 48 Wis. 168. This gives the owner the “ just compensation for his property taken for a public use,” as secured to him by the constitution and law of the state. If the adjoining property is diminished in market value in consequence of the construction of a railroad over a portion of the land, the depreciation is as much an element of the damages for the injury
In the case before us, the street in front of the plaintiff’s lot was graded down by the company several feet, in order to secure a gradual slope and to restore the street to its former usefulness. A large quantity of earth and soil was removed, and used elsewhere on the track of the company’s road. The jury found the value of that part of the lot actually taken by the company, and the extent of the injury or damage to the remainder of the property not taken, occasioned by cutting down and restoring the street in front
Now the learned counsel for the company only objects' to the last item of damage, which he insists is unjust and should not be allowed. His contehtion is made notwithstanding the admitted fact that the operation of the road, with other causes, has resulted in diminishing the market value of the property for the full amount found by the jury. It is obvious that the contention of the learned counsel is in flat contradiction with what we have said is the settled rule upon this subject in this state; for, as we have remarked, that rule is: Where a railroad company takes land for the use of its road, it must not only pay for the land actually taken, but must make good the damages to the adjoining property which are directly attributable to the construction and operation of its road across a portion of the land. This is the only true rule, for it makes “ compensation go hand in hand with the actual loss or injury sustained by the person whose land is taken.” It seems to us that this is the proper measure of redress, and is but making a just compensation to the owner whose property is taken, in conformity to the requirement of the constitution and statute of the state upon the subject. The rule, of course, necessarily implies or means full compensation for the loss or injury, not partial compensation. If the adjoining property is actually depreciated in market value in consequence of the construction and operation of the railroad where it is located, is not the owner entitled to his compensation for this diminished value of his property? We do not think the injury or loss can properly be said to fall within the maxim, dcomnv/m absque injuria. We are speaking now of a case where property has been taken for the purposes of a railroad, and not one where no land has been taken, but consequential damages result to property
But it is said that the land in question was not taken and occupied permanently for railroad purposes, but that there was only a temporary taking, in order to restore the street to its former condition, and that this act would not draw to itself the liability to make good an. injury attributable to the operation of the road. We see no ground for making such distinction. It is a verity in the case that the property was injured $2,000 by the cutting down of the street and by the operation of the road. Why should not the company make good this loss to the plaintiffs? The company has taken property for railroad purposes — unless it is a trespasser — and, as we have said, this taking carries with it the obligation of making the compensation which the constitution requires. It matters not what particular act or thing causes the depreciation in the value of the property; if it is occasioned by the taking of a part of the
Ve bave examined tbe authorities cited by tbe learned counsel to sustain bis position on tbis point, and do not think they are applicable to tbe case at bar. Some of these cases were in tbe nature of actions on tbe case for consequential injuries to land incident to tbe construction and operation of a railroad. They were not condemnation proceedings where tbe rule implies entire and full compensation for tbe injury. Consequential injuries to property resulting from the operation of a railroad, such as tbe annoyance from smoke, noises, cinders, or obstructions to the access of premises, must be distinguished from tbe direct injury which is caused by tbe taking of a part of tbe land
It follows from these views that the judgment of the circuit court must he affirmed.
By the Court.— Judgment affirmed.