70 Wis. 414 | Wis. | 1888
The answer put in issue the plaintiff’s title to the strip of land in question. This being so, he was only-entitled to compensation upon making proof of title or some interest in himself. Diedrich v. N. W. U. R. Co. 42 Wis. 248; Winchester v. Stevens Point, 58 Wis. 355. Without such title or interest he rvould have no right to enforce proceedings in condemnation. It is urged that as the plaintiff owned the land at the time of filing the petition, it was the duty of the court to appoint commissioners, regardless of the question whether he would have been entitled to any compensation that might have been awai’ded. In other words, that the power of the court upon the hearing of such petition was limited to the determination whether the railroad company was entitled to the land described, and hence that the question of the plaintiff’s title should be determined in the first instance by the commissioners, subject to a retrial in the circuit court on appeal. Sec. 1849, E. S. It is true the statute makes it the duty of the commissioners to view the premises, hear the allegations of the parties, and “ appraise, ascertain, and determine the value of each such tract or parcel of land, . . . with the improvements thereon, and of each separate estate therein, and the damages sustained by the owner by reason of the taking thereof, and fix the amount of compensation to be made to each of such owners therefor.” Sec. 1848. So the statutes provide for the determination of any conflicting claims to
This brings.us to the question whether, upon such showing, the plaintiff was entitled to compensation for the land taken. It is settled in this state that where the owner of the land has, by express or tacit consent, permitted the railroad company to enter thereon, construct its road-bed and track, and occupy the same for the purposes of a railroad, he has thereby, in effect, waived and lost his former remedies, and is relegated to proceedings under the statute
Dy the Court.— The judgment óí the circuit court is affirmed.