67 Wis. 108 | Wis. | 1886
1. The question chiefly argued on this appeal is that of interest. The contention on behalf of the railway company is that, inasmuch as it had not taken actual possession of the condemned premises, it is inequitable to ■ require it to pay interest on the sum paid into court for the use of the owner thereof, after the date of such payment. The argument is that the company is required by law to pay the money, and it should not be compelled to pay it and also to pay interest on it accruing thereafter.
The general rule in this state is that, pending an appeal from the award, the sum awarded draws interest from the filing- of the award. West v. M., L. S. & W. R. Co. 56 Wis. 318. This rule rests upon the ground that upon such filing the money awarded becomes due and payable, although no execution can issue therefor until the company has been in default sixty days.
.There may be equitable considerations, however, which will take a given case out of the rule. Eor example, if the sum awarded be paid or tendered to the owner of the land condemned instead of being paid into court (as it may be under sec. 1850, E. S., with like effect as if paid into court), no interest thereon should be allowed after such payment or tender. Again, if the owner shall receive the amount of an award which has been paid into court, interest thereon will cease from that time. It is said in some of the cases that if the owner have the profitable use of the premises, or has received rent pending the appeal, the interest should be
This case is not within either of these exceptions to the general rale. The sum awarded has not been paid or tendered to the plaintiff. On the contrary, the railway company expressly instructed the clerk of the court to withhold it from him. He did not receive the money before judgment. Indeed, the statute provides no way by which he could obtain it. On the motion for judgment it was made to appear that the condemned land was rented property; that the plaintiff’s tenant left it two weeks after the award was filed; that it has since been unoccupied; and that he has received no rent therefor accruing after such filing. As to the damage to the balance of the plaintiff’s lot not taken, obviously these questions of rent and beneficial use have no application. The damage was done when the other portion of the lot was taken, and it was assessed with reference to the continued occupancy thereof by the owner.
It has been said that if the owner appeals, and is the sole occupant, interest should not be allowed. Why not ? What justice or reason is there in imposing upon the owner the loss of interest because he avails himself of his statutory right to have the award of the commissioners reviewed by a court and jury? We cannot approve such a rule. Again, it has been laid down that until possession is taken by the railway company interest is not allowed. The reason given is that until then a locus penitentim remains to those moving the condemnation, and the money is not considered as detained. However this may be elsewhere, it will be difficult to find in our statute the locus penitential after the award is filed, when the owner may have execution for the sum awarded if it remains unpaid for sixty days after such filing. Hence the reason of the rule last above stated fails in this state, and consequently the rule also fails.
It should be observed that the burden is upon the party
The case of Feiten v. Milwaukee, 47 Wis. 494, is relied upon by counsel for the railway company as an authority against the allowance of interest in this case. There the city commenced two proceedings to condemn land for the purposes of a street, but before any appraisal of damages and benefits was made it abandoned both of them. The right of the city to do so was not denied. The action was brought by the owner of the land to recover damages for certain alleged acts and omissions of the city pending the proceedings, affecting the property, and -for the alleged depreciation in the rental value of the property caused by the pendency of the proceedings. The nature of the case and the grounds upon which the judgment was rested are thus stated in the opinion: “ It is only the ordinary case of incipient proceedings to condemn property to the public use, abandoned before consummation; and in all such cases, if the city does not exceed its lawful authority, to the injury of the owner, pending the proceedings, it cannot be held liable for damages which the owner may incidentally sustain by reason of the proceedings. Such is the tenure by which all property subject to be taken for public use is held.” Because the complaint failed to show that the city had exceeded its lawful authority to the' injury of the owner, a demurrer thereto was sustained. ¥e have here a different case, calling for the application of different rules of law. Ve conclude that interest was properly allowed, from the date of filing the award.
We must not be understood as holding that such testimony is admissible on the direct examination of an expert witness in such a case, without proof that the other real estate concerning which keiis interrogated is similar in character, location, and value to the land in question in the action. Probably it is not. Washburn v. M. & L. W. R. Co. 59 Wis. 364.
The same witness was asked, on cross-examination concerning each of several lots (the value of which he had estimated, as before stated), whether he did not know, and .whether it was not a fact, that at about the time of the condemnation proceedings each such lot was sold at a sum named in the interrogatory, which sum was greatly in excess of the estimated value testified to by the witness. We think this wras proper cross-examination. But if it was not, inasmuch as the witness denied knowledge of any such.sales, no harm resulted to the defendant.
By the Court.— The judgment is affirmed.
