57 Wis. 311 | Wis. | 1883
The judgment makes no provision for the payment of any portion of the award to Bowen on account of his alleged mortgage. Upon this omission error is assigned. The appeal to the circuit court opened the whole case as between the parties to the appeal. The report of the commissioners was not evidence either that the plaintiff was the owner of the land, or that Bowen had a mortgage interest therein. On the trial in the circuit court the burden was upon the plaintiff to show that he owned the land sought to be condemned, and upon the defendant company to show that Bowen had a mortgage interest therein. The plaintiff proved his title, but the defendant failed to prove the alleged interest of Bowen. Thus far, therefore, it does not appear that any deduction should be made from the amount recovered by the plaintiff on account of the alleged mortgage of Bowen. Had the railroad company desired to litigate on the trial the question of Bowen’s interest, it should have applied to the court to make him a party to the proceeding, or, at least, it should have shown that he had a then subsisting interest in the land, in which case (Bowen not having appealed) probably the court would have directed the sum awarded him by the commissioners to be paid to
As the case stands, we think the above error is not well assigned. If Bowen is entitled to receive any part of the damages or compensation herein awarded, we think the railroad company will find no difficulty in obtaining authority to pay such part thereof to him without incurring any risk of being compelled to pay the amount twice.
The remaining errors are assigned upon the rulings of the court in the admission of testimony. The court put the following question to the plaintiff when on the stand as a witness in his own behalf: “ ITow much in your opinion has it (the railroad) depreciated the value of your farm as a whole? ” The plaintiff answered under objection. A special point is made against the competency of this question, to the effect that it does not exclude from the estimate of the witness the land actually taken by the company, which was appraised separately. We think the question refers to the plaintiff’s farm after the land had been condemned, and therefore does exclude the land taken of which he had ceased to be owner. “Tour farm as a whole” evidently means the farm owned by the plaintiff at the time of trial, and the land taken then constituted no part of it. If the counsel for the defendant feared that the scope of the question might be misapprehended by the jury, he should, then and there, have asked the court to limit it, or change its form to guard against any possible misunderstanding.
A witness, called on behalf of defendant, testified to his opinion of the effect of the railroad on the market value of plaintiff’s land. The court permitted the witness to be cross-examined by plaintiff’s counsel as to the effect upon such mar
By the Court.— Judgment affirmed.