Loop v. Chamberlain , 17 Wis. 504 ( 1863 )

By the Court,

Oole, J.

If there were any matters in tbe stipulations wbicb operated as a discontinuance of tbe suit, or wbicb showed that the action could not be maintained, then perhaps the court might nonsuit the appellant as soon as it appeared that such stipulations had been made in the cause. In such a case, we do not think it would be incumbent upon the court to go into the plaintiffs testimony, when it was obvious he could not recover under any state of proof. It was contended that the plaintiff had the absolute right to introduce his evidence and prove his case, and that he could not be interrupted by the defendant for the purpose of reading the stipulations to the court, whatever those stipulations might have contained. But suppose the stipulations themselves showed that the plaintiff must fail, what possible use or necessity could there be in going through a laborious investigation of the evidence on his part before giving effect to the stipulations ? None that we can perceive. ■ In that case, the defendant could doubtless raise the objection in limine that the plaintiff had stipulated himself out of court. So that if we were of the opinion that the matters set forth in the stipulations would defeat a recovery, we should not feel warranted in setting aside the nonsuit because they were read to the court at the outset of the trial and before the plaintiff had introduced his evidence. But we do not place any such construction upon the stipulations. They do not show that the plaintiff intended to stipulate himself out of court, but rather that he expected the action would proceed for the damage done to his undivided interest. Nor are there any facts admitted in the stipulations inconsistent with or fatal to the cause of action stated in the complaint, as .we understand them. They were obviously drawn up to relieve the parties from the necessity of proving on the trial certain facts which they deemed material to their case.

The action in this case is to recover damages for certain alleged trespasses committed upon the real estate of the plaintiff. It is alleged, in substance, in the complaint, that the defendant, in the months of June and July, 1856, by himself, agents, employees, contractors and workmen, entered upon the close of the plaintiff — describing it — and then und there broke up said tract of land, and proceeded f¡o grade and locate a railroad track thereupon, and appropriated the land to the use of the railroad, and utterly prevented him from the use and enjoyment of it, to his damage of twelve hundred dollars.

There can be no doubt that these allegations show a wrongful and injurious invasion of the property of the plaintiff, for which he is entitled to recover damages. He alleges that the defendant, with his servants and workmen, has entered upon his land, permanently appropriated it for the use of a railroad, and deprived him of the benefit, use and enjoyment of his own property. The trespasses are of so extensive and injuri-rious a character as to almost destroy the value of the estate. Is not a party entitled to a remedy for such injuries? We have no doubt of it, and it has in effect been so decided in' several cases which have come before this court.

It is contended, however, that this is not in the nature of an action of trespass guare clausum for an unlawful intrusion upon and permanent use of the land of the plaintiff, but is a proceeding to obtain compensation for property taken for the use of the road, and that therefore the nonsuit was right. Eor it is said, the party, to obtain his compensation for the land taken, must pursue the remedy given by the charter. The reply to this objection has already been given by our saying that the action is, in form and essence, one for a trespass upon the real estate of the plaintiff. It is not a proceeding to obtain compensation for land taken. Such is not the object of the suit. If the plaintiff were seeking compensation for his property taken for the construction of a railroad, then obviously his remedy would be the special one given by the charter. But it is a suit to recover damages for acts wbicb directly and injuriously affect both tbe possession and title of real estate. Eor sucb acts, we suppose, trespass will lie, unless tbe defendant can show some right or license to enter upon tbe land, and use and enjoy it for tbe purpose to wbicb it bas been appropriated. No sucb right or license appears from tbe stipulations. It is true that it is admitted in tbe stipulations, that tbe defendant, as contractor under tbe La Crosse & Milwaukee Railroad Company, built tbe railroad across tbe land mentioned in tbe complaint where it was located by tbe engineer of the company. But it is very apparent that, unless tbe company bad tbe right to enter upon tbe land and permanently appropriate it for tbe use of its road, it could not give tbe contractor under it that right. Tbe fact, then, that tbe defendant committed tbe trespasses complained of as contractor of the railroad company, affords no justification, unless the company itself bad acquired the right to use tbe land for tbe purposes of its road. If tbe company had acquired tbe right to use and enjoy tbe property for its road, it will undoubtedly appear in tbe proof on tbe trial. It would be improper to express an opinion in advance upon the question, whether or not tbe company bad taken tbe steps under its charter necessary to entitle it to enter upon and hold the land for tbe location and construction of its road; and moreover tbe defendant does not place bis justification upon that ground in tbe stipulations. And we have now only to consider, whether the nonsuit was right in view of tbe facts admitted in tbe stipulations and stated in tbe complaint.

• There is a still further objection taken to tbe complaint, that it contains no averment whatever that the plaintiff forbid tbe defendant from building or operating the road over bis land. It is alleged that tbe defendant, with bis servants and workmen, “ without leave and wrongfully entered into and upon the plaintiff’s close,” &c. What more was it necessary to aver in tbe complaint ?

Again it is said, tbe claim of tbe plaintiff should be discountenanced by reason of its staleness. But manifestly tbe court cannot sustain tbe nonsuit on this ground, when tbe statute permits an action for trespass to real estate to be brought within six years.

As little weight is there in the suggestion, that it was incumbent upon the plaintiff, when he first had knowledge of the construction of the road, to forbid the defendant from using and occupying his land, so that the latter might abandon his work or obtain an indemnity from the company. The plaintiff was not obliged to do any such thing. The defendant entered upon the land at his peril, and it was his duty, before constructing a railroad over it, to see that he had a right to use and occupy the land in the manner he did.

The judgment of nonsuit must be reversed, and the cause remanded for further proceedings according to law.