81 Wis. 82 | Wis. | 1892
Where the petition for the condemnation of land is filed by the railway company, it must, among other things, describe the land sought to be taken, and state the names of the owners, occupants, and parties interested, as near as may be. Sec. 1846, R. S.; Washburn v. M. & L. W. R. Co. 59 Wis. 382. Such proceeding is, in some respects, a proceeding m rem; and hence condemnation may be had, even though the owners of or persons interested in the land be nonresidents of the state, or their residence be unknown. Sec. 1848, R. S. Such proceeding, being regular, and the amount of the awards to the respective owners and persons interested being paid into court or to such owners and persons, and their several receipts therefor filed with the clerk of the court, vests in the corporation, its successors and assigns, the title and the exclusive use of the premises condemned, and every part and parcel thereof. Sec. 1850, 1851, R. S. This would be so, regardless of any conflicting claims to the money so paid into court, which may be determined as prescribed by statute. Walton v. G. B., W. & St. P. R. Co. 70 Wis. 417. In other words, the chief concern of the company is to acquire a perfect title to the lands, and the chief concern of the respective owners and persons interested is to obtain their respective shares of the award. Since the title to land is generally of record, the company may, as a rule, safely proceed against the apparent owners and persons interested for the condemnation of the same.
The statute, as it now stands, provides in effect that if the corporation neglects to institute such proceedings, or delays in the prosecution thereof, any party interested in the lands taken may institute such proceedings and conduct
This being so, it is very manifest that the enactment mentioned was for the benefit and in the interest of railroad companies. But, as indicated, such neglect or delay on the part of the corporation only authorizes such proceedings to be instituted by a person owning or having some interest in the land so taken. Whenever such ownership or interest of the petitioner is denied by the railway company, the determination of the issue so raised is of primary importance. It is only when such determination is in favor of the petitioner that the court is authorized to proceed and appoint commissioners. If, on the other hand, such determination is against the petitioner and in favor of the company, then the petition should be dismissed without such appointment. The statute nowhere prescribes the time or manner of such determination. The section last cited does provide that in case of “a disagreement between such corporation and the owner of such land in relation ” to certain matters therein named “ the court or judge thereof shall, at the request of either party, award an issue
In Wooster v. S. R. V. R. Co. 57 Wis. 311, relied upon by counsel, the proceeding was instituted by the company. The petition stated the existence of an outstanding mortgage, and the commissioners apportioned their award between the owner and the mortgagee. Upon an appeal from the award by the owner and a retrial the whole damage was adjudged to the land-owner. The company appealed to this court, and sought a reversal on the ground that the award had not been apportioned between the owner and the mortgagee. The judgment was affirmed, however, on the ground that the burden was on the company to show on such retrial whether there was anything due and payable on such outstanding mortgage. Besides, it was there suggested by the present chief justice that the company still had its remedy by paying the amount of the award into court and obtaining an order, upon proper showing, for its distribution to the mortgagee. This would seem to be provided for in the section last cited. The question here presented was not involved in that case.
In Walton v. G. B., W. & St. P. R. Co. 70 Wis. 414, the proceeding was instituted by the land-owner. The answer of the company denied the petitioner’s title. The issue there made was, by consent of parties, tried in a summary way by and before the court; and it was found by the court, as a matter of fact, that the petitioner had no title, and judgment was entered thereon accordingly, dismissing his petition. Upon an appeal to this court by the land-owner it was urged that it was the duty of the court to appoint commissioners, regardless of the question of title. But it was held that the petitioner was only entitled to compensation upon making proof of title or some interest in himself,
In the order of January 8, 1891, appointing commissioners in the case at bar, the court determined that the petitioner bad title to the loans in quo. The award of damages was made on that theory by the commissioners February 3,1891. The plaintiff contends that such determination of bis title is conclusive upon the company. But the company appealed from that award February 10, 1891, and now contends that the petitioner’s title is still open for final determination upon such appeal. It is to be regretted that the statute does not prescribe the time and manner for determining such contested title. Neither of these contentions are before us for determination on either of these appeals. The question here is whether the court properly ordered the company to pay the fees of the commissioners May 18, 1891, and whether the court properly refused to modify that order June 13, 1891.
The statute expressly provides that “ the commissioners shall be entitled to such compensation as the court may direct, which shall be paid by the railroad corporation.” Sec. 1848, E. S. Under this statute, and where the company institutes the proceedings, it may certainly be required to pay the commissioners’ fees as soon as their services have been performed and the amount of their compensation is fixed by the court. So the statute provides that “in every such case the party interested in such lands may institute and conduct the proceedings to a conclusion, if the corporation delays or omits to prosecute the same, at its cost and expense? Sec. 1852, E. S. The mere fact that the landowner instituted the proceedings does not, in our judgment, take away nor change the liability of the company. It still may be required to pay the fees of the commissioners as soon as their services are performed and the amount thereof is fixed by the court. The order of January 3,1891,
By the Court.— Both of the orders appealed from are affirmed.
I am inclined to the opinion that the question of title in railway condemnation proceedings instituted by a land-owner is not finally settled until judgment upon appeal from the award of commissioners. Such is the case when the company institutes the proceedings ( Wooster v. S.R. V. R. Co. 57 Wis. 311), and I see no sufficient reason for a different rule in a case where the land-owner initiates the proceedings. Now if, as seems clear, no one can prosecute these procehdings at the expense of the company save a land-owher, and the question of ownership is not finally determined until the judgment upon appeal, it seems plain to me that the right to charge the company is not settled until that judgment is entered. It does not seem to me that the company should be compelled to pay commissioners’ fees pendente Ute, when by final judgment it may be decided that there is no liability to pay anything. On this ground I dissent.
