Skalicky v. Friendship Electric Light & Power Co.

193 Wis. 395 | Wis. | 1927

Eschweiler, J.

The appellant company contends that upon the appeal taken by the petitioners from the award of the commissioners there must be a trial de novo in the circuit court of all the issues presented by the petition and the answer. The respondents contend that the company, having failed to file exceptions to the findings made in the first hearing wherein commissioners were appointed and having failed to appeal from the order therein, is conclusively bound by the result of the preliminary hearing and that no question is or can be presented on appeal other than the amount of damages for the taking. The trial court ruled upon the offers of evidence made by the defendant in accord with respondents’ contention and such rulings present the primary questions to be determined.

These proceedings were instituted by landowners under ch. 32, Stats., regulating condemnation under the power of eminent domain.

Sec. 32.04, Stats., provides two separate and distinct methods by which condemnation proceedings may be started:

First, the manner in which one who seeks to acquire property belonging to another shall proceed; and then—

Second, the manner in which the owners of the property, such as plaintiffs here, may or shall proceed against any one taking their property without first having obtained the right so to do under such section.

The second ‘method is found in the last two sentences of said section, providing that “If any owner of property desires to institute condemnation proceedings, he shall present his verified petition therefor,” etc. It is by .this section, and not by sec. 32.15, as is claimed by respondents, that they come into court.

The distinct, separate, and adverse nature of the two methods prescribed in these proceedings, dependent upon the fact as to who takes the initial steps, is well illustrated by the established rule that when one seeks to take, By right of eminent domain, another’s property, and in the petition recites, as must be done, title in and ownership by his adversary, such taker is thereafter bound by such expressed recognition of title and cannot afterwards be heard to assert to the contrary, nor compel the one so recognized as owner to prove or defend his title. In proceedings so initiated the title of the landowner is not in issue. Murray Hill L. Co. v. Milwaukee L., H. & T. Co. 126 Wis. 14, 23, 104 N. W. 1003. But on the other hand, where the person whose lands, it is claimed, are being taken, initiates the condemnation proceedings, he must both assert and prove his title, and such title, if not conceded, is an issue. Walton v. Green Bay, W. & St. P. R. Co. 70 Wis. 414, 417, 36 N. W. 10; Taylor v. C., M. & St. P. R. Co. 81 Wis. 82, 87, 51 N. W. 93; these two cases being expressly approved on this point in Murray Hill L. Co. v. Milwaukee L., H. & T. Co., supra (p. 24).

Then comes the further question as to the issues presented on appeal from an award.

When such initial proceedings, by whomsoever instituted, have culminated (under other statutory provisions not necessary for consideration here) in the fixing of the compensation for the taking, then the same chapter provides by sec. 32.11 — the only one as to appeals — that “Any party to a condemnation proceeding may appeal from the award of the commissioners to the circuit court of the county. . . .” This must be done within thirty days from the filing of the report. The section further provides:

“The clerk shall thereupon enter the appeal as an action pending in said court with the owner or owners of the property for which the award was made and who are parties to the appeal as plaintiffs, and the party by whom the property is taken as defendant. It shall thereupon proceed as an action in said court subject to all the provisions of law relating to actions originally brought therein. It shall be tried by jury unless waived. Costs shall be allowed to the successful party on the appeal. If in favor of the plaintiff they shall be added to the verdict. If in favor of the defendant, they shall be deducted therefrom.”

Giving force and effect to, and a reasonable interpretation upon, this quoted language, and especially the portion to the effect that, irrespective of who started the proceedings, the landowner becomes plaintiff and the party taking the land defendant in the circuit court, and that thereafter it shall proceed as subject to all provisions of law relating to actions originally brought therein, requires, we think, a holding that when such purely statutory condemnation proceedings reach the circuit court on appeal they are then, by force of this statute, for trial de novo before the court and jury and upon any and all issues that can be properly framed or asserted upon the entire record as it then stands. This same subject was fully discussed under former sec. 1849 (in substance the same as sec. 32.11, supra) in Spies v. C. & M. E. R. Co. 148 Wis. 35, 133 N. W. 1110, where the petition was by the company, the landowner appealing and withdrawing the money which had been paid into court and the verdict being much less than the award, nevertheless the company, though not appealing, was entitled to a judgment for such excess. This decision held that on such appeal by the landowner there must be a trial de novo. The nature of these proceedings and the appeal to the circuit court is again fully discussed in Milwaukee L., H. & T. Co. v. Ela Co. 142 Wis. 424, 428, 432, 125 N. W. 903. See, also, Wooster v. Sugar River V. R. Co. 57 Wis. 311, 313, 15 N. W. 401. We have examined the cases from other jurisdictions cited to us on this point, but find none that are here applicable.

A strictly literal following of this statute, apparently limiting the right of an appeal to “the award of the commissioners,” might possibly prevent a landowner commencing the proceedings from going further after an adverse ruling by the court at the outset as to his ownership or right to any damages, but such question is not here - presented, for the appeal here is concededly correct.

In the instant case the proceedings originally instituted by the landowner, he asserting his title and it not being conceded by his adversary, the plaintiff landowner must again prove his title and ownership of the lands claimed to be taken, because without such ownership he can be entitled to no relief whatsoever. In the case at bar the petitioners apparently recognized such necessity and made formal proof of their record title to the lands flowed as part of their case. The defendant was, however, by the rulings of the trial court prevented from disputing plaintiffs’ title or showing a superior right, and in such rulings there was reversible error.

The appellant made several formal offers of proof as to what was meant by the phrase “four run of stone” — found in the conveyances through which plaintiffs asserted title, objections thereto being sustained.

We think an expression of such nature found in the conveyances upon which plaintiffs asserted title and being a term not in such general use that the court can and must take judicial notice of its meaning, was a subject matter proper for competent expert testimony. That until it has been demonstrated by proof or confessed by lack of proof that the term cannot be explained or shown to have some recognized definite meaning in its own particular field of usage, the phrase itself is not so indefinite and uncertain that it cannot be applied in a situation such as was here presented.

We think it was as clearly the subject for competent expert witnesses as was the term “square inch of water” in the case of Janesville Cotton Mills v. Ford, 82 Wis. 416, 423, 52 N. W. 764; or “inch of water” in Jackson M. Co. v. Chandos, 82 Wis. 437, 444, 52 N. W. 759; or “rated capacity” of a boiler in U. S. Heater Co. v. Jenss, 128 Wis. 162, 165, 107 N. W. 293; or “loading off shore” in a marine policy in Johnson v. Northwestern Nat. Ins. Co. 39 Wis. 87, 93; 1 Jones, Evidence (2d ed.) § 455.

Exception was also taken by appellant to the determination by the trial court that the maintenance of the head of water in the dam at ten feet and no more during the years intervening 1867 and 1915 was a practical construction, binding on defendant, as to the height of water that might be properly maintained under whatever flowage rights defendant or its predecessors might have under any conveyances.

Under the record as it is now presented, we can recognize no such force or weight to be given to the mere fact of maintaining the dam at such particular head during those years. If the original right of flowage under the conveyances did, as a matter of law, permit a greater head than ten feet, then the mere fact that the defendant and its predecessor did not choose to increase the head until 1915 could not of itself alone so materially change and alter the original grant as to cut it down to the actually used head. Hemmis v. Consolidated W. P. & P. Co. 173 Wis. 518, 522, 181 N. W. 743. It was also offered to be shown, and should have weight if established, in the construction to be given to the extent of flowage granted and also on its actual use, that for a time at least only two and not four run of stones were operated..

The record before us is such that we do not feel authorized to now dispose of the case.

By the Court. — Judgment reversed, and cause remanded for further proceedings.