Taylor v. Chicago, Milwaukee & St. Paul Railway Co.

83 Wis. 645 | Wis. | 1892

Lyon, C. J.

We are of the opinion, and so hold, that the provision of the statute which entitles the plaintiff to the cost and expense of prosecuting the condemnation proceedings when the company, by its neglect or omission, has compelled the plaintiff to institute the same (R. S. sec. 1852), is not limited by what would be taxable costs in an action. If such was the intention of the legislature, we think the term “ and expense ” would have been omitted. The policy of the statute seems to be to make it the duty of the railway company to institute the proceedings, for when it does so no costs are allowed to the land-owner. Wis. Cent. R. Co. v. Kneale, 79 Wis. 95. But if the railway company omits to do so, and thus drives the land-owner to institute and prosecute the condemnation proceedings, it seems to be the intention of the statute to give him full indemnity for his necessary expenditures in that behalf. This operates, and was doubtless intended to operate, as a penalty for its neglect of a duty it owed the land-owner.

We are also of the opinion that the circuit court properly excluded expenses arising after the appeals bad been taken from the award of the commissioners. When such appeals were taken, that which before that time was a mere special proceeding became an action in which the prevailing party was entitled to costs under the statute. R. S. secs. 1849, 1850.

The circuit court had but little testimony before it of the value of the attorney’s services. The plaintiff only testified that he was advised and believed they were reasonably worth $3,000, but he does not say who advised him, nor give his means of knowledge of their value. The railway company furnished no evidence on the subject. The circuit judge was called upon to fix the amount of such services on that testimony, supplemented by his own knowledge of the character and extent of such services; for most of them were rendered before him. By submitting the question on such unsatisfactory proofs the parties compelled the judge to use his own knowledge, thus acquired, in order to-give intelligent judgment. This he might properly do. Halaska v. Cotzhausen, 52 Wis. 624. Under the circumstances, we do not think either party is in a condition to complain of the sum áwarded.

As to the other disbursements, there is sufficient in the affidavit of the plaintiff to justify their allowance by the court.

By the Court.— The order is affirmed on both appeals.