Jeffery v. Chicago & Milwaukee Electric Railroad

119 N.W. 879, 138 Wis. 1, 1909 Wisc. LEXIS 65

• Court: Wisconsin Supreme Court
• Decided: February 16, 1909
• Status: Published

Opinions

The following opinion was filed February 16, 1909:

Kerwin, J.

The commissioners awarded damages for the entire property described in the petition, and the appeal was from the award, neither party appealing from the order determining that it was necessary to take the whole of the land described. The appellant paid into court, in conformity with the statute, the amount of the award, and entered into possession of the property taken. The filing of the award and payment of the money vested the title and exclusive use of the premises in the appellant, subject to the amount of the award being increased. Murray Hill L. Co. v. Milwaukee L., H. & T. Co. 126 Wis. 14, 104 N. W. 1003, and cases there cited. The condémnation of the land as to the quantity and interest taken became fixed by the order on the hearing of the petition, and the filing of the award, payment of the amount awarded, and taking possession fixed the rights of the parties arising from the taking under the right of eminent domain. The appellant could not, on appeal from the award, elect to take a lesser estate or different interest than that taken below, and which it possessed itself of by compliance with the statute and taking possession. Sprague v. N. P. R. Co. 122 Wis. 509, 100 N. W. 842; Schermeely v. S. & St. P. R. Co. 16 Minn. 506; Peoria, P. & J. R. Co. v. Black, 58 Ill. 33; Babcock v. C. & N. W. R. Co. 107 Wis. 280, 83 N. W. 316. The land of the plaintiff having been taken by hostile proceedings in condemnation, he was entitled to compensation for the land actually taken as well as compensation for the damages to the other land, under the statutes giving the remedy. Bigelow v. West Wis. R. Co. 27 Wis. 478; McCord v. Sylvester, 32 Wis. 451; Hill v. M. & H. R. Co. 5 Denio, 206; C., S. F. & C. R. Co. v. McGrew, 104 Mo. 282, 15 S. W. 931; McArthur v. Kelly, 5 Ohio, 139; Toledo, A. A. & N. M. R. Co. v. Munson, 57 Mich. 42, 23 N. W. 455; Chesapeake & O. R. Co. v. Patton, 5 W. Va. 234; Roanoke City v. Berkowitz, 80 Va. 616; Hibernia U. R. Co. v. De Camp, 47 N. J. Law, 518, 4 Atl. 318; Leeds v. C. & A. R. Co. 53 N. J. Law, 229, 23 Atl. 168; Leader v. Multnomah Co. 23 Oreg. 213, 31 Pac. 481; In re Eastern Wis. R. & L. Co. 127 Wis. 641, 107 N. W. 496. The power to take is statutory, and under our constitution and statutes the appellant had the right to acquire the exclusive use of the land in question. It did so, and whether it could Rave taken a less interest, and whether such interest would have been sufficient for the public use described, we need not consider. The court below, upon the hearing for condemnation, determined and adjudged that it was necessary to acquire the exclusive use of the premises described in the petition, and that determination must be held conclusive on appeal from the award. This doctrine is well supported' by authority, and rests upon the rule that, after the property has been condemned and the title acquired under the award, it cannot be surrendered, in whole or in part, upon an appeal from the award, without the consent of the landowner. In Hill v. M. & H. R. Co. 5 Denio, 209, the court said:

“The object in reserving an easement to the original owners of this land must have been to procure its valuation at a reduced sum and thus save expense to the corporation. All this was very proper to be adjusted by the parties, and might be mutually advantageous to them, but I do not see that the statute authorizes land to be taken compulsorily o-n any such terms or conditions.”

In addition to the eases heretofore cited we call attention to the following: Charnly v. Shawano W. P. & R. I. Co. 109 Wis. 563, 85 N. W. 507; Crook v. First Nat. Bank, 83 Wis. 31, 52 N. W. 1131; Clausen v. Head, 110 Wis. 405, 85 N. W. 1028; Babcock v. C. & N. W. R. Co. 107 Wis. 280, 83 N. W. 316.

The main contention of appellant here is that the offers made were not by way of tendering back any of the land or interest therein taken, but for the purpose of mitigating-damages. But it seems plain that if the corporation taking could, after it had taken the exclusive use and gotten possession of it under condemnation proceedings, tender back rightsr easements, uses, or conveniences in lieu of damages or value,, it would be indirectly, .if not directly, permitted to evade payment in the manner which the constitution and statutes require. So we arrive at the conclusion that the only crossings which could be considered upon the trial below were those contemplated by the statutes, known as “farm crossr ings.” The question, therefore, arises whether the subway-offered was a “farm crossing” within the meaning of the-statute. It is claimed by appellant, chiefly upon the authority of Manitowoc C. P. Co. v. M., G. B. & N. W. R. Co. 135 Wis. 94, 115 N. W. 390, that it was. But the facts in the-above case were very different from the facts in the instant case. In view of the physical conditions in the Manitowoc Case above mentioned, the subway crossing was the only practical crossing or convenient one which could be given, or at-least it was a practical and convenient one and the one calculated to carry out the object of the parties. The track of the-railway company was built on an embankment, and the situation of the property and necessities of the Manitowoc Clay Product Company such that any other than a suberossing-would probably not be suitable or convenient. The principal controversy was whether the Manitowoc Clay Product Company was entitled to a farm crossing, and the question was as-to amount of damages with and without the crossing. The railway company insisted that the term “farm crossing” as-used in the statute was not confined to agricultural land, but applied in all cases where tracts of land were divided by the railroad right of way and it was necessary for the owner to-pass from one tract to the other in the proper use and occupation of his property. Some language in the opinion seems to-support, in a measure, the claim of the appellant regarding-the right of the railway company to tender conveniences irrespective of the statutory crossing, but such was dicta not necessary to the decision of the case, and-the opinion turned, upon the right to a “farm crossing” under the statute, and that the subcrossing was a suitable and convenient one. So-We are of the opinion that in the instant case the appellant-was entitled to tender a subcrossing, and, if it could show that it would be suitable and convenient, be allowed to construct and maintain it in mitigation of damages, but such-•construction and maintenance must be upon the lands taken, •or those taken and other lands of the appellant, and without interference with other land or property of plaintiff. This would seem, from the record before us, difficult, if not impossible, to do, but we do not feel that the appellant should be foreclosed from showing, if it can, that suitable and convenient crossings may be constructed at grade or otherwise. Of course the appellant must show that it is able to construct and maintain such suitable and convenient crossings as are contemplated by the statute; and, as before observed, the crossings need not necessarily be confined to grade, if, otherwise constructed and maintained, they be suitable and convenient; but there is no authority of law for the taking of any property of plaintiff against his will, in the construction and maintenance of any of the rights, easements, or conveniences offered, other than the property taken by the order of condemnation on the original hearing, and which order is not 'here for review. The offers to construct and maintain a bell ■or signal, conduit, and bridges were properly ruled out because there is no authority for such construction against the will of the plaintiff. What has been heretofore said is sufficient upon this point.

Counsel for appellant favors us with some authorities which appear to hold a different doctrine, and at least lean to the idea that rights and privileges may be tendered by the corporation taking in mitigation of damages. But in so far as those cases are out of harmony with the rule laid down in this opinion we cannot follow them. We think the policy of this court thus far has been to hold to the contrary, as shown by the cases heretofore cited, namely, that after the land of the owner is condemned the compensation must be made for the damages, and only in the way pointed out by the statutes. In Sprague v. N. P. R. Co. 122 Wis. 509, 100 N. W. 842, this court held that after the award the railway company could not discontinue because under the award title vested in the company. If the company cannot dismiss as to the -whole of the land taken because of the vesting of title, why as to part % The transferring to the owner of rights, easements, and privileges ont of the land taken in effect is turning back part of the property taken in mitigation of damages. In Sprague v. N. P. R. Co., supra, Mr. Justice Siebecker, speaking for the court, said:

“It is the policy of the state, as evidenced by the statute, to give railroad corporations extensive powers for acquiring real estate for corporate uses, but such powers should he exercised in good faith, on occasions when the interests of the public and of the corporations are to be promoted by it. It is upon these considerations that the right is granted to these corporations of taking all necessary real estate at its fair market value, regardless of the wishes of the owner, who must yield to the necessities of the public undertaking. If the right is asserted and established by the condemnation, and prosecuted to the point of ascertaining the amount of the award, and the railroad company is permitted to elect to abandon the proceeding or not after such award, upon the ground that it cannot secure the property at its own price, it might readily transpire that the owners would be subjected to many hardships, and their rights might be seriously interfered with. We must hold that the proceeding cannot be dismissed after the commissioners’ report has been filed with the clerk of the circuit court.” «

Other authorities supporting the conclusion arrived at are 15 Cyc. 783; Petition of N. Y., L. & W. R. Co. 49 Hun, 539, 2 N. Y. Supp. 478; Old Colony R. Co. v. Miller, 125 Mass. 1; 2 Lewis, Em. Dom. (2d ed.) § 505; Roanoke City v. Berkowitz, 80 Va. 616; Oregon S. L. R. Co. v. Fox, 28 Utah, 311, 78 Pac. 800; Van Horne’s Lessee v. Dorrance, 2 Dall. 304.

It is claimed that the court erred in refusing to receive an option held by appellant for the purchase of a tract of land west of the plaintiff’s plant for $2,327 from the Bain estate. The condemned strip having taken a part off the side of the plaintiff’s tract, leaving him with an imperfect testing track and no land of his own suitable for extension, it was proposed by the tender of the option to show that a sufficient quantity of land was embraced within the option at the •amount named. The obvious purpose of this offer was in mitigation of damages. The fact that other lands in the immediate vicinity could be purchased from a third party at a reasonable price, to which plaintiff should shift his business, could not be shown to reduce the damages to which plaintiff was entitled. It is not material that he could move part of his plant to other land for the purpose of giving the appellant .a right of way, and thus, in effect, swap land for the accommodation of appellant. What has been heretofore said applies here as to the tender in mitigation of damages, which it was obviously offered for. The only relevancy such an offer could have, if admissible for any purpose, would be as tending to prove the value of land in the immediate vicinity of the plaintiff’s plant on the question of value of the land taken and damages to other land. But the offer was not competent on the question of value of the land embraced in the option. The option offered was not supported by any sworn testimony, and therefore the statements therein were not evidence of value of the land described therein. 2 Lewis, Em. Dom. (2d ed.) §§ 446—448; Watson v. M. & M. R. Co. 57 Wis. 332, 15 N. W. 468; Seefeld v. C., M. & St. P. R. Co. 67 Wis. 96, 29 N. W. 904; Esch v. C., M. & St. P. R. Co. 72 Wis. 229, 39 N. W. 129; Montclair R. Co. v. Benson, 36 N. J. Law, 557; Winnisimmet Co. v. Grueby, 111 Mass. 543. Moreover, the contents of the option were not made known, except by a general statement. The option was not offered formally, so that counsel could examine it, so far as we can discover from the record. Nor does it appear that the •option was in force when the offer was made. It is very obvious that it would be a dangerous rule to allow an adverse party, for the purpose of establishing the value of land, to put in evidence a writing purporting to be an option to sell at .a named price, without any other proof verifying the facts stated in the option. This would, in effect, be to allow the appellant to make proof by declarations of third parties not under oath. The offer made to assign the option to the plaintiff had no materiality, because, as we have seen, appellant could not transfer interest or rights in lands in mitigation of damages, and it was not competent on the question of value of the land therein described or in the vicinity. Seefeld v. C., M. & St. P. R. Co. 67 Wis. 96, 29 N. W. 904; Montclair R. Co. v. Benson, 36 N. J. Law, 557; Esch v. C., M. & St. P. R. Co. 72 Wis. 229, 39 N. W. 129.

There is another class of errors which may, we think, be conveniently treated together, because they go to the question of amount of damages and whether excessive. As will be ■seen from the statement of facts, the appellant requested that •certain questions be submitted in the special verdict, which were refused, and the court submitted as the verdict two questions. It is difficult to see how the jury could have answered these questions as they did without duplicating the damages. Had the court submitted the questions asked by the appellant the verdict would not be open to objection of duplicity. The first question proposed simply asked for an answer as to market value of the land taken March 3, 1906, and the second as to how much the market value of the remaining land of plaintiff was diminished by the taking of the strip, considering the uses to which such land was put on March 3, 1906. It is plain that any answer to these questions could not result in duplicating damages. But how about the questions submitted? In the first the jury were asked to find the fair market value on March 3, 1906, “considering said strip as a part of plaintiff’s entire tract and premises as used in his business in question.” And in the -second question they were asked to find the fair market value ■of the remainder of the plaintiff’s premises not so taken depreciated March 3, 1906, by the taking of the strip so condemned. Now tbe plaintiff was entitled to recover the fair market value of the strip taken and the damages to the other land occasioned by the taking; but when they found in the first question the value of the strip taken, considering it as a part of the plaintiff’s entire tract and premises as used in his business, they necessarily found, not only the value of the-strip taken, but some damage to the remaining premises.. The value of the strip, considering its use in connection with the balance of the land as used in the plaintiff’s business, necessarily involved the idea of damage to the remainder of the plant. The jury by the first question of the special verdict was required to find, not alone the value of the strip taken, but its value as part of the plaintiff’s entire tract and premises as used in his business. This was quite a different thing than finding the value of the strip as a part of the whole-tract of land of which it was a part, considering its natural advantages arising out of its location and situation. Its value as a part of the entire premises as used in the plaintiff’s business must include deterioration in whole or in part of the remainder of the plant, because this is its value when considered as a part of the entire premises as such premises were-being used when the strip was sevei'ed. The value of the strip as used in the plaintiff’s business would necessarily be regarded by the jury as including a part of the damage which the whole plant would sustain by the severance of the strip. A strip of land taken out of a manufacturing plant might be of great value when considered as a part of the premises as used in the business, while aside from its use in the business it might be of very small value. So the idea of value of the strip for such use included an element of damage to the premises and business. Suppose the plaintiff was forced to purchase a small strip of land adjacent to his plant and necessary to have in order to successfully operate his plant. The value of such strip to him for use in connection with his business-would far exceed the market value or the value to others, and by the addition of tbe strip bis plant would be increased in value far beyond the reasonable market value of the strip. So in the first question, when the value of the utility of the strip in connection with the plaintiff’s business was included in the damages, some portion of the damage to the whole premises was included. We think the jury, in answering the first question intelligently, would necessarily include damage to the remainder of the premises. Had the second question of the special verdict been framed so as to exclude any damage above the value of the land taken, the situation would bo different. But it was not. On the contrary, the second question called upon the jury to award all damages for depreciation caused by the taking of the strip. In this situation duplication of damages seems inevitable. If the verdict had confined the jury to finding the market value of the strip taken as a part of the tract, and not as part of the tract “considering said strip as part of the plaintiff’s entire tract and premises as used in his business,” it perhaps would not have been subject to criticism under the rule laid down in Washburn v. M. & L. W. R. Co. 59 Wis. 364, 375, 18 N. W. 328; Watson v. M. & M. R. Co. 57 Wis. 332, 15 N. W. 468; Esch v. C., M. & St. P. R. Co. 72 Wis. 229, 39 N. W. 129, and other cases in this court.

Moreover, in connection with the form of the verdict, certain evidence admitted under objection was well calculated to unduly enhance damages. Witnesses were permitted, against appellant’s objection, to answer questions respecting the value of the land taken, “considered as an integral part of the entire plant and property,” and the value of the strip taken “as a part of the entire plant and manufacturing site belonging to the plaintiff, including the machinery and fixtures, considering the plant as an entirety, and including fixed machinery and fixtures.” These, and other similar questions permitted to be answered as to the value of the strip taken and damages to tbe remaining land, in connection witb tlio special verdict, made a case wbicb necessarily resulted in duplication of damages, and was not cured by tbe charge.

Tbe findings of the jury also clearly show, when viewed in tbe light of tbe evidence, that it did in fact include in tbe value of the strip taken damages to tbe other land. Tbe quantity of land taken was about 2.3 acres, and the witnesses under the form of questions asked put tbe value at from $35,000 to $60,000, tbe jury finding tbe value of tbe strip taken under tbe first question of tbe special verdict, $25,000; yet tbe evidence establishes that tbe strip taken, disconnected from tbe balance of tbe plant and business, would not exceed one tenth of tbe award allowed by tbe jury for it. Tbe strip taken was not occupied by any buildings, except a foundation constructed shortly before tbe petition for condemnation was filed. It was situated between the main plant and tbe testing track, and took a small portion of tbe testing track. So it is plain that tbe jury, in awarding damages for tbe strip taken, included in such award a portion of tbe damages included in tbe award of damages to the remainder of the land and premises, and yet under the second question they were required to award- all damages done the remaining premises.

At the time tbe condemnation proceedings were commenced there was an easement for railway purposes between the plaintiff’s testing track and the balance of tbe land, and a part of tbe strip taken lapped over upon this easement or right of way, wbicb is known in this case as tbe Newell-Hoyt easement, and this easement separated tbe main part of the plaintiff’s plant from tbe testing track and therefore was an important consideration on tbe question of damages to tbe balance of tbe plant not taken. Upon this point tbe appellant requested the court to instruct tbe jury as follows:

“You are instructed that on tbe 3d day of March, 1906, a right of way, or easement, as it is called, belonged to Mrs. Newell and Mrs. Hoyt, to build and maintain a track, or tracks, across tbe premises of plaintiff upon a strip of land twenty feet wide, tbe center of wbicb strip was 341.9 feet west of tbe west line of Charles street, and wbicb ran north and south through said premises in a straight line after leaving tbe end of the curve in tbe spur tracks shown on tbe map, marked ‘Plaintiff’s Exhibit E,’ and to' cause to be transported property in cars along such tracks. Tbe right of tbe owners of this easement so to occupy and use said strip' was paramount to any right of tbe plaintiff to cross such strip or to use tbe surface thereof for any purpose whatever.”

This instruction was calculated to bring to tbe attention of tbe jury tbe fact that along tbe condemned strip there existed an easement wbicb necessitated tbe keeping of this strip open and unobstructed for tbe passage of cars. Tbe fact that this easement existed should have been submitted to tbe jury upon tbe question of damages. The court not only refused to give the instruction requested respecting tbe Newell-Hoyt easement, but sent tbe case to tbe jury upon tbe theory, so far as we can discover from tbe record, that no such easement existed. This we think was error. Whether tbe strip taken by appellant cut tbe plaintiff’s land so as to separate tbe main part from tbe testing track, or whether an easement existed at tbe time condemnation proceedings yrere commenced wbicb would in whole or in part have tbe same effect, was a most important consideration for tbe jury. The easement secured tbe right to Mrs. Newell and Mrs. Hoyt as well as to plaintiff to use this strip of land for tbe passage of cars. The request to charge to tbe effect that they bad a paramount right to this strip was not technically correct, because tbe proof shows that the use by them was in common with tbe plaintiff, there being mutual covenants in the deeds between the parties for use by each. But some instruction along the line asked should have been given. Tbe importance of some instruction on the subj ect is intensified by the proof admitted. Eor example, evidence was admitted, over objection and exception, of the value per square foot of tbe plant, and the idea of extension of the business made to appear to be a prominent f aotor in the value of the plant and property taken, as well as damages; also as to the value of the strip taken “considered as an integral part of the entire plant and property,” and “considered as a part of the entire plant and premises occupied by Jeffery, including fixed machinery and fixtures.” This and other evidence was admitted, which, when taken in connection with the verdict, was well calculated to tie the jury down to a wrong rule of damages. No error was committed in refusing, to charge that the plaintiff’s plant consisted of two tracts, but the jury should have been instructed as to the existing easement extending through it, over a part of which the strip, condemned lapped, to the end that the jury might have full knowledge of the obstructions in the way of extending buildings over this strip., regardless of the appellant’s right of way. Tobey v. Taunton, 119 Mass. 404; Miller v. Newark, 35 N. J. Law, 460.

Since there must be a new trial We have referred only in a general way to many of the alleged errors in so- far as may be helpful to the court below on another trial, without intending to cover in detail all points raised in the record.

It is also claimed that the damages are excessive. The duplication of damages arising from the manner in which the ease was presented to the jury, including the form of the verdict, doubtless accounts for the size of the verdict. Whether w© would set the verdict aside as excessive if the case had been properly presented and no error appearing in the record we need not determine, since the judgment must be reversed upon other and more obvious grounds.

By the Court. — The judgment of the circuit court is reversed, and the action remanded for a new trial.