Wisconsin Central Railroad v. Cornell University , 49 Wis. 162 ( 1880 )

Lyoet, J.

1. Is the order condemning a strip of land two hundred feet wide appealable? We think it is. The statute provides that the filing of the petition shall be the commencement of a suit in the court in which it is filed. R. S., 539, sec. 1846. Probably the word “ suit ” is employed in statutes somewhat in the sense that the word “ remedies ” is used in section 2594, and may be construed to mean either an action or special proceeding, according to ’ the subject matter of it. This is not “ an ordinary proceeding for the enforcement or protection of a right, or the redress or prevention of a wrong.” lienee it is not an action, but a special proceeding. R. S., secs. 2594-6. The order appealed from is a final order, and it affects a substantial right. It is therefore appealable. R. S., 799, sec. 3069.

2. A brief consideration of. the merits of the appeal must suffice. The testimony shows that the respondent’s railway in the county of Ashland passes through a wild, rugged and broken region, and that deep excavations and high embankments were frequently required in constructing the road. The land along the line is also more or less heavily timbered. Such are the general features of the route over the lands of the appellant. It does not require the testimony of witnesses to show that a railroad company, constructing its -road through such a country, necessarily requires a wider right of way than it would were its railroad constructed over a more level or even route. Any person of common observation knows that fact without formal proof of it.

Ho attempt will be made further to state the testimony preserved in the bill of exceptions. It seems to relate chiefly to the danger to the railway track from falling trees, and is conflicting on that subject. It is difficult for us to determine from a perusal of it whether the company needed two hundred feet wide across the lands of the appellant or not. But the great familiarity of the learned circuit judge with that portion of the state is well known — indeed, is almost matter of history; and, because of such familiarity, he was much better qualified to pass upon the weight of the testimony concerning the necessity for the condemnation of two hundred feet wide than are the members of this court. The testimony convinced him that such necessity existed, and we fail to find that satisfactory preponderance of proof to the contrary which would authorize us to disturb his ruling in that behalf.

3. The petition seems to be in proper form, and we think it sufficiently states the reasons why a greater width than one hundred feet is required.

By the.Oouri. — ■ Order affirmed.