Moore v. Superior & St. Croix Railroad

34 Wis. 173

• Court: Wisconsin Supreme Court
• Decided: January 15, 1874
• Status: Published

Opinion

Lyon, J.

A writ of certiorari was issued out of this court to the judge of the eleventh judicial circuit, to bring here for review certain proceedings had before him on the petition of ■ the defendant in error, which proceedings resulted in the appointment by said judge of commissioners to estimate and appraise the damages caused by the taking, for railroad purposes, of certain lands belonging to the plaintiffs in error.

The petition appears to be substantially in tbe form prescribed by the charter of the defendant in error (P. & L. Laws of 1870, ch. 326, sec. 14), but is not, either in form or substance, a compliance with the requirements of the general railroad law of the state (Laws of 1872, ch. 119, sec. 14), which was enacted prior to the commencement of these proceedings before the circuit j udge.

It is argued on behalf of the plaintiff in error, that such general law furnishes the rules for the condemnation of private property to the use of railroad corporations, and prescribes'the methods which must be employed to effect that object, and that the provisions of the charter of the defendant in error, which prescribes other methods of condemning property to its use, are abrogated by the general law.

We think that this position is correct. We regard ch. 119, Laws of 1872, as a revision of all former statutes which confer the right of eminent domain upon railroad corporations. If a revision, it repeals all conflicting provisions on the same subject-matter in such former statutes. Burlander v. The Mil. & St. Paul R. R. Co., 26 Wis., 76; Lewis v. Stout, 22 id., 234. See also secs. 13 and 55, ch. 119, Laws of 1872.

The petition which is the foundation of these proceedings, is fatally defective, and is insufficient to confer jurisdiction upon the circuit judge to appoint the commissioners. Indeed, no attempt seems to have been made to comply with the requirements of the act of 1872 in that behalf.

No argument has been submitted on behalf of the defendant in error, and we are informed that the proceedings to condemn the lands in question have been abandoned. For these reasons we have not thought it necessary to do more than merely to announce the conclusion we have reached on a single controlling question. The other questions (some of them of great importance) argued by counsel for tbe plaintiffs in error, are there: fore left undetermined.

The appointment of commissioners, and all of the proceedings before the circuit judge, must be reversed, set aside and vacated.

By the Court — So ordered.