Driver v. Western Union Railroad , 32 Wis. 569 ( 1873 )

Cole, J.

It is very clear to our minds that there was no error in the ruling of the court below in holding that the jury, in estimating the damages, should consider the value of the premises as of the 7th day of May, 1870, the time of the taking and condemnation of lot 7 for railroad purposes. This is the time the land was actually taken by the company under its charter, and when the commissioners appointed to appraise the damages made their award. The charter makes it the duty of the commissioners to view and examine the lands which are taken for the use of the road, with the buildings and improvements thereon, and to estimate the value of the lands so taken or required by the company, and all damages which the owner should or might sustain by reason of the taking of the same for the construction and use of the road, taking into consideration the advantages as well as the disadvantages of the same, by means of the construction of the road, to the owner of the property. Section 1, ch. 16, P. & L. Laws of 1854. Upon tbe commissioners making and filing their report, and payment or legal tender of the appraisement to the owner, or upon the payment of the amount to the clerk of the court to which the appeal has been taken, title vests in the company. Now the 7th of May was the time the commissioners made and filed their award, and wken the company, by depositing the amount thereof with the clerk, acquired, under the charter, the right to lot 7. This, then, was the actual taking of the property for the use of the road, and the time to fix its value, not only within the intent of the charter, but upon general principles applicable to these cases. The Milwaukee & Miss. R. R. Co. v. Eble, 4 Chand., 72; Robbins v. Milwaukee & Horicon R. R. Co., 6 Wis., 636 ; Kennedy v. The Mil. & St. Paul R. R. Co., 22 id., 581. The plaintiffs were entitled to recover the value of lot 7 at the time it was condemned and appropriated by the company, together with such damages as they sustained by reason of the taking of the same over and above the advantages to them in consequence of the construction and operation of the road.

The counsel for the company would probably not contest the correctness of these views in ordinary cases, but' he claims there are special circumstances surrounding this case which call for the application of a different rule.

It appears that the plaintiffs purchased lots 7, 8, 9 and 10 in block 5 in the first ward of the city of Racine, some time in January, 1870, and early in the next month proceeded to lay the foundation for a planing mill and a sash and door manu-factory on lots 8, 9 and 10, leaving a space of about twenty • five feet between the west side of the building and the west line of lot 8, and of twelve feet between the east wall of the building and the east line of lot 10. Upon this foundation a costly and extensive establishment was erected before the commissioners made their award, in May, of the value of lot 7 and the damages sustained by the plaintiffs to the adjacent property in consequence of the taking of this lot for railroad pur-' poses. ■ Long. prior to tbe purchase by the plaintiffs, the railroad. company had laid its track across the corner of lot 7 with the consent of the owner, Charles Herrick, of whom the plaintiffs bought. It does not appear that the company had anything more than a parol license thus to occupy the corner of this lot; or that Herrick had done anything from which the company could justly infer that compensation for the property taken had been waived. But the plaintiffs had knowledge of the existence of the track there, and that the company was operating its road over it, when they purchased. And immediately after the plaintiffs’ purchase, negotiations commenced between them and the officers of the company in respect to the acquisition and use by the company of lot .7 for the purposes of the road, and the plaintiffs were notified that the company had been in possession of a part of that lot for more than ten years ; that the entire lot was required for the use of its road; and that, unless it could be purchased at an agreed price, proceedings would at once be taken under the charter to condemn the whole lot. Proceedings were accordingly instituted, which resulted in an award on the 7th of May. But in the meantime the plaintiffs went on with their improvements, and, when the commissioners came to examine the premises, had their planing mill and manufactory in successful operation. And it is insisted by the counsel for the company, that it is contrary to every just principle of law or equity to allow the plaintiffs, after notice of the purposes and rights of the company in respect to lot 7, to proceed with their improvements and thereby enhance.the damages which the company must pay on account of the depreciation of the adjoining property when it came to condemn that lot. As one item of damages, the plaintiffs were permitted to recover the depreciation in the market value of the property adjacent to lot 7 by reason of the taking of that lot by the company for the use of its road; and the time for estimating the amount of such depreciation was by various rulings of the court determined to be the 7th of May. Were tbe plaintiffs entitled to bave tbe damages assessed as of that day, or should they be assessed as of some other time?

. Tbe proposition seems to us perfectly ineontestible, that tbe company acquired tbe title to lot 7 when tbe commissioners made their award and tbe amount thereof was deposited with the cleric. That was tbe time tbe land was actually taken and condemned under the charter. If tbe company occupied a portion of tbe lot with its track before this time, such possession was merely permissive. It bad really acquired no rights even in that lot by purchase or condemnation. True, it bad laid its track over tbe corner of tbe lot with tbe knowledge of tbe owner; that is, it was occupying tbe lot under a license. But we suppose it would bave been competent for tbe owner at any time to revoke tbe license and resort to bis legal remedies to obtain possession from tbe company. Probably a court of equity would not bave interfered to enjoin tbe running of tbe cars over tbe track on tbe application of the owner, because be bad acquiesced in tbe track being laid without insisting upon compensation being first made. But further than this we do not understand tbe owner had lost or waived any rights by the delay of tbe company to condemn tbe property. And if tbe company neglected to exercise the right of eminent domain and acquire tbe property, it certainly could not insist that tbe owner should not use or improve it until it actually condemned it under its charter. Nor were tbe owners bound to await tbe action of tbe company, but could make their improvements in view, of course, of tbe contingency that a portion of tbe property might be taken for railroad purposes. But upon what principle it can be said the owners bad no right to improve their property and build their factory, even though the consequences might be to enhance tbe damages which tbe company would be compelled to pay when it finally condemned a portion of tbe land, we are at a loss to understand. There is no ground for saying that tbe plaintiffs proceeded in bad faith, and made an expensive improvement merely for tbe purpose of enhancing tbe damages wbicb tbe company would have to pay. They improved tbeir property as they bad a perfect right to do, and when the company proceeded to condemn, lot 7 under its charter, the plaintiffs insisted that it should pay the damages to the adjoining premises resulting from the taking of this lot foi railroad purposes. It seems to us that the claim is a just and proper one ; fully sustained by the spirit and language of the charter. For the charter requires the commissioners to estimate the value of the land taken or required by the company, and all damages which the owner shall sustain or may have sustained by reason of the taking of the same for the construction and use of the road, considering the advantages as well as the disadvantages which may result therefrom to the owner. And, in estimating the damages sustained by the plaintiffs, the jury were properly advised to consider the value of lot 7, and the depreciation in the market value of the adjoining property, if any, at the time when, by the act of the company, it made this lot its own for all the purposes for which it was entitled to hold it under its charter. This is in accordance with the previous decisions in this state above referred to, and is plainly what the charter contemplates; and we fail to discover any fact or circumstance surrounding this case which calls for the application of a different rule. Suppose the planing mill and manufactory had been in successful operation when the nego-tions took place between the plaintiffs and the agents of the company in respect to the acquisition of lot 7, but had been burned down before that lot was actually taken and condemned under the charter. In that event the company would not probably insist that the damages for the taking and condemnation should be assessed at any other time than when the commissioners made their award. The company would then doubtless have said that this was the time as to which the question of damages should be determined, since that was the time it actually exercised its right of taking the property under its charter. And this action of the company, depriving the owner of his title and dominion over his property and appropriating it to the use of its road, really constitutes the “ talcing,” within the sense and meaning of the charter, for which compensation must be made. The previous occupancy of a portion of lot 7 for its track, even with the consent of the owner, did not, however, make the lot the property of the company, or prevent the owner from insisting upon his legal remedies to recover possession. The fact that the plaintiffs proceeded with their improvements after the company instituted steps to condemn lot 7, is relied upon to show that they ought not in justice and equity to recover for any depreciation in value of the adjoining premises in consequence of the taking of this lot. But what could the plaintiffs do ? They desired to improve and use those lots for their factory. True, they knew that the company had instituted proceedings to condemn lot 7, but those proceedings were wholly under the control of the company. The company might abandon them at any time before the commissioners made their award. The only thing they could do was, either to await the action of the company, which might neglect, as it had for years, to condemn the property, or to go on and improve and use it in that way which seemed most for their interests. And when the company should take any portion of such property for the use of its road, they might well rely upon the constitution and the charter for securing them compensation for all damages thereby occasioned. It is said they went forward with their eyes open, and, if they are subjected to inconvenience for the want of suitable room for the prosecution of the business of their mill, it is their own fault. The answer to all this is, that the plaintiffs had the legal and moral right to use and improve their property, and if the necessities of the company for the use of lot 7 were such that it could afford to pay them the damages resulting from its acquisition, then the company could acquire it by the proper proceedings. But we fail to see any ground for imputing to the plaintiffs any negligence or wrongful use of their own in what was done by them.

Another question arises upon the exceptions taken to the a'dmission of evidence of the use to which lots 8, 9 and 10 were devoted; of the business carried on by the plaintiffs upon the premises, and the effect which the taking of lot 7 had on this business done at the planing mill and door and sash factory. It is said by the counsel for the company, that this evidence was objectionable as tending to introduce an element of damages not proper to be considered in the assessment. The court instructed the jury that this evidence was admitted upon the ground that it might have a bearing upon the question of the market value of the property before and after the condemnation of lot 7 for railroad purposes, and upon that ground alone, and that the use to which the plaintiffs had applied the property was of no importance beyond its influence upon the question of the market value thereof, and any depreciation which resulted from the taking of that lot. I have had some difficulty upon the point whether the evidence was admissible even for the purpose stated by the court below, but am inclined to the opinion that it was. “ The kind and amount of business transacted upon the premises by the plaintiffs were proper elements for the consideration of the jury in estimating the damages done” to the property by the taking of lot 7. Such evidence doubtless tended to prove the actual effect of the taking of that lot upon the residue of the property. The test question was, the real market value of the property before and after the taking of lot 7 by the company. This would determine the amount of damages which the plaintiff had sustained in the depreciation of the mill property in consequence of the taking of that lot. The question in principle is quite analogous to the one presented in Snyder v. The Western Union R. R. Co., 25 Wis., 60. There witnesses stated what in their opinion was the depreciation in the market value of the' farm in consequence of the railroad passing over it, together ■with some reasons and facts wiry it was diminished in value. These facts and reasons were given by the witnesses to account for the actual decrease in the market value of the farm. So here, the evidence admitted in respect to the business done at the planing mill and factory tended to prove that this property was less valuable than it would have been had not lot 7 been taken for railroad purposes. And it is manifest that the use of the property, the kind and amount of business done, and the facilities for transacting it, would inevitably and necessarily enter into the estimate of the value of the property. They were elements proper for the consideration of the jury in estimating damages sustained by the plaintiffs in consequence of the taking of lot 7 by the company. See Boston & Worcester R. R. Co. v. Old Colony & Fall River R. R., 8 Allen, 142-146; also Price v. The Milwaukee & St. Paul R. R. Co., 27 Wis., 98; Bigelow v. The West Wisconsin R. R. Co., id., 478. Of course the plaintiffs were not seeking to recover for damage done to their business, but for an actual injury to their property. If the mill property was not worth as much in the market in consequence of lot 7 being taken by the company, then this decrease in value measured the loss the plaintiffs had sustained by reason of the taking of the same. In this view, and with the qualification with which this evidence was submitted to the jury, I cannot see how it could have misled the jury as to the basis of their appraisal. For the jury were distinctly instructed to ascertain from the evidence the permanent depreciation in the market value of lots 8, 9 and 10, if any, by reason of the taking and appropriation of lot 7 for railroad purposes, to be estimated as of the day the commissioners made their award, less any benefits which might result to the plaintiffs from the construction of the drain made by the company.

Again, it is said that as the company took the whole of lot 7, the alleged depreciation in value of the adjacent premises could not extend beyond lot 8. But this is a mistake. See Welch v. The Milwaukee & St. Paul R. R. Co., 27 Wis., 108, where it is held that the owner is entitled to compensation for the injury to the whole property, and not merely for that to the separate lots over which the road was built. That decision in principle is applicable here.

These remarks sufficiently dispose of the exceptions which are deemed worthy of special notice.

By the Court.— The judgment of the circuit courtis affirmed.

. On a motion for a rehearing, defendant’s counsel, besides re-arguing some of the questions considered in the foregoing opinion, also contended, 1. That the judgment in this case was erroneous and should be reversed because it includes the value of lot 7 and the damages to the adjacent lots in one sum; and that the verdict and judgment should state these two items of damages separately (P. & L. Laws of 1854, ch. 16). 2. That the judgment ought at least to be reformed so as to show by its terms that the company is entitled to the easement of the lands so long as it shall use the same for its road.

The respondent’s counsel argued, 1. That the verdict was in effect a general verdict for damages upon two distinct causes of action, and that as defendant did not request that the jury be instructed to assess the damages separately upon each cause of action, there was no error in such general verdict (1 Chitty Pl., 8th ed., 411; 2 Allen, 230; 3 Cush., 58, 91, 107; 27 Wis., 478); that as no exception was taken to the charge in that respect or to the verdict at the time of trial, it is now too late to raise the question of irregularity in verdict and judgment (24 Wis., 139; 27 id., 478), and as no such exception is embodied in the bill of exceptions, the question was not before this court for adjudication. 9 Wis., 156; 8 id., 166. 2. That the judgment was strictly correct; that after the commissioners had filed their award and the company paid the same, or deposited the amount with the clerk of the circuit court, the title to the land passed to it by operation of law, and the proceedings on appeal thereafter only affected the amount of compensation which plaintiffs should receive. 4 "Wis., 268; 6 id., 514; 9 id., 450.

The motion for a rehearing was denied.