Parks v. Wisconsin Central Railroad , 33 Wis. 413 ( 1873 )

Lyon, J.

There are no exceptions to the charge of the circuit judge to the jury, and the bill of exceptions does not purport to contain all of the testimony. Hence, we can only review the rulings of the circuit court on the petition fora change of venue, and on objections to the admission of testimony. No other exceptions are saved by the bill.

1. Did the court err in denying the defendant’s petition and motion for a change of venue ? Clearly it did not, if the question is to be determined by the general statute concerning the change of venue by reason of the prejudice of the inhabitants of the county in which the action is pending. E. S. of 1849, ch. 95, sec.-1 (E. S. 1858, p. 1055; id., ch. 123, see. 6; Tay. Stats., 142L-5, §§ 8 and 14). The counter affidavits read on the hearing of the petition, showed conclusively-that no sufficient cause existed for granting the prayer of the petitioner. They prove that an impartial jury could easily have been obtained in Portage county to try the cause. But it is claimed that the petition. was not made under the general law on the subject, but was made pursuant to the following provision of the charter of defendant, contained in sec. 27 thereof: “ In all cases of appeal from the determination of the appraising commissioners, as provided in this act, a change of venue shall be allowed and rendered by the court to which such appeal shall be made, or by the judge thereof, in case any credible person shall make and file with the clerk of such court an affidavit, in which the affiant states that he knows, .or really believes, that the appellant or appellee cannot, before the judge of such court, or before a jury of the county where such appeal shall be pending, obtain a fair trial.”

Under this provision the defendant was absolutely entitled to a change of venue, if there was produced to the court on its behalf the affidavit of a credible person (and every person is presumed credible until the contrary appears), stating, either upon knowledge or belief, one of two facts or opinions, to wit: 1st, That the defendant could not obtain a fair trial before the judge of the court in which the action was pending; or 2d, That he could not obtain a fair trial before a' jury of Portage county. The affidavits upon which the motion was founded contain no reference to the judge of such court. His fairness and impartiality are not questioned. Does the.petition (which, being verified, is to be regarded as an affidavit), or the affidavit accompanying it, contain an averment, whether of fact or opinion, that the defendant could not have a fair trial before a jury of Portage county ? Certainly neither of them contains such an averment in terms. For reasons which will be briefly stated, we should be justified in holding the defendant to a strict, if not a literal, compliance with the terms of this provision of its charter. It is an exceptional provision. It gives a right or remedy in this'class of actions in which this defendant is a party, which is not given in any action to which this defendant is not a party. No safe-guards are provided to prevent the grossest abuses under it. Unlike a kindred law, the party may procure a change of venue under this provision of the defendant’s charter, without insulting the judge, for the petitioner is not required to give a reason for his belief. The provision must have been enacted for the benefit of tbe defendant exclusively, for we never heard of a case where the owner of the land condemned hesitated or feared to have his damages assessed by a jury of the county in which the land is situated. There is no good reason why this extraordinary remedy should be given to this defendant, and withheld from every person or other corporation, litigants in the courts of this state, who are not so fortunate as to have this defendant for an antagonist. The provision is also objectionable in principle, in other respects. It matters not that an affidavit under it is utterly false, tbe opposite party is not permitted to show that it is false. If the affidavit be sufficient in form, the case must go to another county, and the opposite party must suffer the delay and increased trouble and expense which almost invariably result from such removal. The provision was doubtless enacted inadvertently, escaping the scrutiny of the legislature and the executive, and its presence in this charter is another proof that the people ordained wisely, when, by the late amendment to the constitution, they took from the legislature the power of granting corporate powers or privileges, in cases like this, by special or private laws.

But, giving to the provision of the charter under consideration a very liberal construction in favor of the defendant, the. petition and affidavits do .not come up to the requirements of the law. A sufficient affidavit under this provision must at least express an opinion, in substance, that a fair trial cannot be bad before a jury of Portage county, if the partiality or prejudice of the jury is, as in this case, alone complained of. The affidavits in question do not express any such opinion. They show that very many people in Portage county, by reason of prejudice and ill feeling towards the defendant, were not competent jurors in the case, but they fail entirely to show that by the exercise of the means which the law gives for that purpose, such as tbe rights of examination and challenge, an impa’rtial jury could not readily have been obtained in that county.

The petition and affidavits being insufficient, both in substance and form, the circuit court properly denied the application for a change of the place of trial.

2. The next position of the defendant is, that, inasmuch as its charter (sec. 18) only gives tbe commissioners power to determine the value of the land taken, which, it is alleged, is all they did in this case, and inasmuch as this appeal is only from an appraisal of the land actually condemned, it was incompetent for the circuit court to try any other issue; and hence that the evidence of ownership of the residue of tbe plaintiff’s farm, and of the diminution in the value thereof by reason of the taking of such land by the defendant, was improperly received.

In Bigelow v. The West Wisconsin Railway Co., 27 Wis., 478, we had the same question before us on a railroad charter, the language of which, in respect to the appraisal of tbe value of land condemned, is substantially, if not literally, identical with the language employed in the charter of this defendant. After much consideration, we there held that the term “value of the land taken,” as used in the charter, means just compensation for such land, and that “compensation includes, not only the value of the portion taken, but the diminution of the value of that from which it is severed, also.” Hence, the evidence objected to was competent, in that it tended to prove “ tbe value of the land taken,” or, at least, one element of that value.

Were we to hold that the value of the land should have been assessed, pursuant to the charter, upon the narrow basis for which the counsel for the defendant contends, we should be compelled to hold also, that land cannot be condemned at all for the use of the defendant, for the reason that its charter fails to provide adequate means to ascertain what would be just compensation therefor, within the meaning of tbe constitutional provision on that subject. The result would be that the plaintiff, or any other person in like situation, would, at once, be entitled to an injunction restraining the defendant from operating its railroad over his land, until proper legislation could he procured to enable it to obtain a lawful condemnation thereof. Neither the language of the charter, nor the interests of the defendant or of the public, require, or would justify, a construction of the charter which would necessarily lead to such a result.

We adhere to the principles decided, in Bigelow v. Railway Company, and hold that testimony that the balance of the plaintiff’s land (of which the land condemned is part and parcel) was diminished in value by reason of such taking and condemnation, was properly received by the circuit court. See also Welch v. The Mil. & St. Paul R'y Co., 27 Wis., 108.

3. Considerable testimony was received under objection, showing the situation of the plaintiff’s farm and buildings with reference to the railroad, and the value of certain fruit trees standing upon the land taken; and many reasons were given by the witnesses why they thought the farm was depreciated in value in consequence of the railroad running through it. Amongst these were mentioned the inconvenience and danger of crossing the track, danger to horses and cattle, and from fire, liability of teams to be frightened, inconvenience from noise, dust, smoke, etc., and some other reasons of like character not necessary to be particularly stated. Some of this testimony was called out on the examination in chief of the plaintiff’s witnesses, but the greater portion of it was elicited by the cross examination of the witnesses on both sides.

The testimony has been carefully examined, and it is sufficient to say that we find none offered by the plaintiff and received, which was not competent under the decision of this court in Snyder v. The Western Union R. R. Co., 25 Wis., 60.

Upon the whole case, so far as it is before us on this appeal, we find no error in the rulings of the circuit court, and must therefore affirm the judgment.

By the Court. — Judgment affirmed.