State ex rel. Chicago & Northwestern Railway Co. v. Oshkosh, Algoma & Black Wolf Railroad

77 N.W. 193, 100 Wis. 538, 1898 Wisc. LEXIS 271

• Court: Wisconsin Supreme Court
• Decided: October 11, 1898
• Status: Published

Opinion

The motion was granted October 11, 1898, and the following opinion was filed November 22, 1898:

Winslow, J.

The Oshkosh, Algoma & Black Wolf Railroad Company is a corporation organized for the purpose of constructing and operating a railroad for the purpose of carrying persons only from a point within the limits of the city of Oshkosh, through the towns of Algoma and Black Wolf, to the shore of Lake Winnebago. Desiring to cross the tracks and right of way of the relator, it commenced condemnation proceedings for that purpose in the circuit court by petition. The relator appeared upon the bearing, and, among other objections, raised the objection that the respondent was not a railroad corporation, ivithin the meaning of the law authorizing condemnation, and had not the right of eminent domain. The objections were overruled, and an order made by the court appointing commissioners. Thereupon the relator sued out a writ of certiorari from this court, and, after return, the respondent moved to quash the writ.

The motion must be granted. The order in question was a final order made Jry the court in a special proceeding, and hence was appealable. Gill v. M. & L. W. R. Co. 76 Wis. 293; Wis. Cent. R. Co. v. Cornell University, 49 Wis. 162. Appeal from the order is an entirely adequate remedy to test the question raised by the relator. The general rule is well established that a common-law certiorari will not issue where a party has an adequate remedy by appeal. Wordsworth v. Sibley, 38 Wis. 484; McCaffrey v. Nolan, 1 Wis. 361; Harris, Certiorari, § 44.

By the Court. — Writ quashed.