113 Wis. 44 | Wis. | 1902
This appeal turns, in the main, on the effect of the two deposits of money for the benefit of appellants in the office of the clerk of the circuit court where the report of the commissioners in the condemnation proceeding was recorded. It is conceded that the two deposits, when made, were sufficient to satisfy plaintiffs’ legal and equitable rights as they stood on the day the last deposit was made, September 30, 1899, except as to costs incurred in th'e enforcement of the judgment in the condemnation action and in this action, if the first deposit was then available to them. Counsel for appellants say it was not so available, because the receiver in the sequestration proceeding was entitled to take that fund and administer it as part of the assets of the Manitowoc Terminal Company. That contention is based on the theory that, notwithstanding the money was specially deposited for the benefit of plaintiffs, it still remained the property of the depositor. The statute under which the deposit was made does not seem to contemplate that, niter such an act and the corporation takes possession of the property sought to be acquired and appropriates the same to its use, it has any control over the fund. Sec. 1850, Stats. 1898, provides:
/-‘At any time after the making of such award the railroad corporation may pay to the owners of the lands so taken or to the clerk of said court for the use of such owners the amounts awarded by the commissioners, and thereupon may enter upon, take and use the land for the purposes for which it was condemned, and may move said court or judge, upon twenty-four hours’ notice, that a writ of assistance may be issued to put such corporation into possession of the same; and said ■court.or judge shall, upon the corporation giving security in such additional amount as the court or judge shall require to pay any judgment that shall be recovered against it on appeal, award such writ. If such corporation be in possession or be put in possession of such land pending an appeal the owners or parties entitled thereto shall be entitled to receive the money paid into court on account of the award appealed from, without prejudice to the appeal taken.”
We are not unmindful of the fact that in Neilson v. C. & N. W. R. Co. 91 Wis. 557, it was held that the landowner who appeals from an award made in condemnation proceedings and does not in the meantime take the money deposited for him, and succeeds in increasing such award, is entitled to interest on the whole amount finally awarded to him from the date of the first award. That was based upon the right of the landowner to refuse to part with his property or take any compensation therefor till that full and just compensation secured to him by the constitution shall be provided. It does not militate against the plain meaning of the statute that money, when once deposited in court for the landowner, in the circumstances under discussion, is at his disposal for the purpose of the deposit at any time he may see fit to claim it, and without any prejudice to his right, in due form of law, to pursue the appropriator of his property to obtain further compensation. While the landowner is not bound to withdraw the money, it is obviously placed beyond the control of the corporation. That is the plain meaning of the statute. It follows that the full amount of the first deposit made for appellants must be counted in determining whether the full
Appellants’ counsel further contend that the circumstances of the deposit do not .satisfy common-law rules as regards tender of payment, to extinguish a cause of action or satisfy a judgment. It is a sufficient answer to that to say that the manner in which tender of payment is required to be made to a landowner, in proceedings to deprive him of his property by the power of eminent domain, is regulated by statute, and, so far as it is reasonably calculated to secure to such landowner the just compensation which the constitution guarantees him, it is exclusive.
It is suggested that, as this action was founded on the judgment rendered and recorded in the circuit court for Brown county, it is not affected by a payment to the clerk of the circuit court for Manitowoc county. True, but payment as made, even if it be held to have been sufficient to cover the judgment and subsequent costs, necessary to its extinguishment, and the satisfaction of all .claims of appellants requisite to divest them of their property, did not ipso facto discharge the judgment. But that does not affect this case. If the statute authorized the payment to the clerk of the circuit court where the condemnation proceedings were commenced ' and the report ef the commissioners was filed, and required payment to be so paid as a condition precedent to the acquirement of the property by the railway company, except in case of consent of the owners to receive the money and execute a receipt in the form prescribed by the statute to be deposited in lieu of the money, then there was no other course to pursue than the one adopted. By reference to those parts of secs. 1850 and 1851 covering the subject, it will be seen that the first section provides that the report of the commissioners shall be filed in the office of the clerk of the court where the proceedings were commenced, and that it shall be recorded in the judgment book of said court. The next section provides
It must be conceded that if, as a condition of the right to take appellants’ property, they were entitled to reimbursement for their necessary expenditures in their efforts to real
Tbe trial court gave effect to that part of sec. 1851, Stats. 1898, material to the proposition suggested at tbe opening of this opinion, according to tbe letter thereof, bolding that costs incurred in endeavoring to collect a judgment rendered in a condemnation proceeding are not a part of tbe judgment, and that payment of tbe face of tbe judgment and interest from its date, in tbe manner indicated in tbe section, and a notation thereof as therein indicated, regardless of tbe property owner’s expenditures in fruitless attempts to collect tbe judgment, operates to take bis property against bis will and vest it absolutely in tbe corporation seeking to obtain it for railway purposes. Tbe particular language of tbe section is as follows:
“When no appeal shall be taken from any award within the time provided by law and tbe corporation shall have paid tbe amount thereof into tbe court or filed a receipt therefor, duly signed by tbe owner and acknowledged before an officer authorized to take tbe acknowledgment of deeds, in tbe office of tbe clerk of tbe court, or when, after tbe determination of such an appeal, tbe railroad corporation shall have paid into court tbe amount of tbe judgment rendered thereon or filed a receipt therefor as aforesaid, tbe clerk of said Qourt shall make a minuté of such payment or of tbe filing of such receipt at tbe foot of tbe record of tbe report of such commissioners in tbe judgment book of said court; and thereupon tbe exclusive use of said premises and every part and parcel thereof shall vest in such corporation, its successors and assigns so long as used for railroad purposes.”
What do tbe words, “paid into court tbe amount of tbe judgment rendered thereon,” mean ? Such meaning must be held to be broad enough to secure to tbe landowner, under all circumstances, a just compensation for bis property before being deprived thereof, or tbe legislation must be condemned as partly or wholly unconstitutional. Tbe constitution guar
The subject of whether the necessary costs incurred by a person in efforts to obtain a just compensation-for property sought to be taken from him for public purposes by the power of eminent domain, form a part of such compensation and must be paid or tendered before he can be deprived of his property, has received attention in many courts and by eminent text writers. In 2 Lewis, Eminent Domain (2d ed.), § 559, the opinion is expressed and well supported by authority, that any law which easts the burden upon the landowner of paying the costs necessarily incurred by him in having the compensation ascertained, to which he is entitled for property sought to be taken from him by the power
It follows tbat tbe just compensation which appellants were entitled to receive as a condition of their property being appropriated for railway purposes September 30, 1899, in addition to tbe amount then and previously deposited for their benefit in tbe office of tbe clerk of tbe circuit court for Mani-towoc county, was tbe costs incurred by them in tbe special proceeding to enforce tbe judgment rendered in the condemnation action, and such costs as were properly taxable in their favor in this action up to tbat time. If tbe respondents desired to then stop tbe litigation, they should bave applied to tbe court in this cause for an adjustment of such costs, to tbe
Since the full amount which appellants were entitled to receive was not paid to them or into court for their benefit, under the rules laid down in Neilson v. C. & N. W. R. Co. 91 Wis. 557, they were justified in not taking the money which was deposited and in standing upon their legal rights and demanding interest on the judgment in the condemnation action till tender of the full amount to which they were entitled or payment thereof into court.
A point is made in the brief of counsel for respondents that the $810.36, taxed as costs in the sequestration proceeding instituted by appellants in the condemnation proceeding, included the costs and expenses of the receiver and were taxed at his instance. That accords with the findings filed in this action; but the court found that the $810.36 was allowed as and for the costs and expenses incurred by appellants in the condemnation action subsequent to judgment. All such costs and expenses were incurred at the instance of appellants and primarily for their benefit; they were the losers thereof unless collected of the adverse party. They are just as legitimately entitled to be reimbursed for them as for any others incurred in securing compensation for their property. They were not taxable as costs in this case, as contended for by appellants’ counsel, for they were not costs incurred in this case. But payment thereof should have been enforced by the court as part of appellants’ compensation for their property; or, to put it more accurately, to the end that the compensation awarded to them by the judgment in the condemnation proceedings should not be diminished by the necessary expenses incurred in collecting it.
The result of the foregoing is that the judgment must be reversed, and the cause remanded with directions to enter judgment giving the appellants the relief previously adjudged
By tho. Court. — So ordered.