Buchner v. Chicago, Milwaukee & Northwestern Railway Co. , 1882 Wisc. LEXIS 287 ( 1882 )

LyoN, J.

The second finding of fact, that the railway track of the defendant, where it crosses the highway, does not encroach upon the land of the plaintiff, is conclusive. The first and principal question presented for consideration by this appeal is whether, in view of this fact, the railway company is under legal obligation to compensate the plaintiff for the damage to his lot caused by adjusting the grade of the highway to that of the railway track. Two parties have an interest in the land occupied as a highway,— the public, represented by the proper town authorities, and the owner of the fee. The former has the right of way over the land, and the power through such officers to construct, improve, and grade the highway without interference by the owner; while the latter has the absolute title, subject only to such easement or right, and such power. The compensation paid the owner whose land has been condemned for the uses of a highway, includes not only compensation for the loss he sustains by reason of the establishment of a public way over his land, but, ordinarily, for any injury to his other land caused by the lawful grading, construction, improvement, or repair of such way. Hence, the proper town authorities may, in their discretion, change the grade, deepen the ditches, or make other changes in a public highway from time to time, and unless some statute otherwise provides (as does the charter of the city of Milwaukee), the owner is remediless, no matter how greatly the burden of the servitude upon his land is increased thereby. This is so, not because the additional injury is damnum absque injuria, but because the owner has, presumably, once been compensated therefor. Huston v. Fort Atkinson, ante, p. 350.

The statutes (E. S., sec. 1828, subd. 5, and sec. 1836) hereinafter quoted confer upon railway companies the privilege of locating and constructing their railroads over, upon, and across any public street or highway, imposing upon such companies the duty of restoring the street or highway to its former state, or to such condition that its usefulness shall not be materially impaired, and thereafter to maintain it in the same condition against any effects produced by the railroads. These are the conditions upon which the state allows the use of the public easement in the streets and highways to be shared, and perhaps temporarily interrupted, by railroad companies. The performance of these conditions by the companies is, so to speak, the compensation which the companies pay for the privileges thus granted. But this compensation is made to but one of the parties who have an interest in the land covered by the highway,— that is, to the public,— and is made only for the use of or interference with the public right therein. It does not compensate the owner of the fee for any injury he may sustain because of the use of the street by the company, and the adaptation thereof to the grade of the railroad track. If, as in this case, the railway company, in order to perform its legal obligation to restore the highway it occupies with its track, is compelled to dig and carry away the soil of any person, thereby depreciating the value of his property, it would seem that this can be lawfully done only by the exercise of the right of eminent domain, an indispensable condition to the lawful exercise of such right being that just compensation must be made to the owner of the property taken. This proposition would not be questioned but for the fact that the locus in quo is a public highway. The learned counsel for the defendant maintained in his argument that the reduction of the grade of the highway by the company to adapt it to the grade of the railway track was merely the performance of a function of the town, which, but for the statute, the town would have been compelled to perform; that had the town reduced the grade, the plaintiff would have had no valid claim for the resulting damages, and hence he is still remediless, notwithstanding the intervention of the company.

In the taking of private property for public use there is no room for saying there is damnum absque injuria; for just compensation therefor must be made. Const., art. I, sec. 13. That the property of this plaintiff has been taken for public use cannot be doubted. He has had no compensation therefor, for it cannot be presumed that any such contingency as has happened, to wit, the sinking of the grade of the highway on his lot several feet and the removal of the soil and earth therefrom, was contemplated in the award of damages to the lot when the highway over it was established. It could not then have been anticipated that a railway company would lay its track across the highway, six or eight feet below the surface thereof, and thus necessitate a corresponding reduction of the grade of the highway across the lot. But for the construction of the railway there no change of the grade of the highway would have been necessary. The old grade was, presumably, sufficient for the public use of the highway, and the plaintiff was justified in adapting his buildings and grounds to that grade. He took the risk, and that only, that the proper town officers might at some future time, in their discretion, order a change of the grade, the better to subserve the use of the highway by the public. But he did not, in our opinion, take the risk that a railway company would so construct its road that the highway would become useless until it was graded down upon the plaintiff’s lot to an extent seriously impairing the value of his property.

It seems to us that the plain, sensible, just view to be taken of the matter is this: The railway company were obliged to restore the highway as compensation for the right to run their track across it. To do so, it was necessary that it should enter upon land owned by the plaintiff, and dig and carry away large quantities of earth and soil, permanently changing the surface of the land to his injury. It is also necessary that the company have the right to enter upon the same land in the future, in a certain contingency, for the purpose of repairing the highway. The obligation of the company to make compensation for the land thus taken and the consequent injury is just as clear and certain as its obligation to pay the laborers it employed to do the grading, or for the tools which they used. All was done for its benefit alone. The public received no benefit of the work — enjoyed no advantage from it that it did not have as fully and amply before the railroad was constructed. The highway was cut down and the plaintiff damaged thereby for the advantage of the railway company, and we are aware of no rule of law or morals which will compel the plaintiff to suffer the loss and allow the company to reap the benefits of the transaction.

By way of illustrating our views, we have spoken of the elements which are presumed to enter into an award of damages resulting from' establishing a highway. The principle is precisely the same if the owner dedicates a highway to the public use, for the same elements enter into the value of the land, and may fairly be presumed to have influenced the owner in making such dedication, or, in case of a sale thereof, the grantor and grantee in fixing the consideration.

The precise question under consideration is now presented for the first time in this court. We have chosen to determine it in the light of fundamental principles of law. The learned counsel have cited numerous adjudged cases in support of their respective views. Reference to these cases will be preserved in the report of this case, but is not required here. In each of them the court has sought to apply the principles which control our judgment in this case. It is believed that they all fully recognize the rules of law which we have endeavored to apply here. We are strongly inclined to think that the statutes above cited were designed to and do provide for just such cases as this. Sec. 1828 provides that a railroad company shall have power, . . . “5. Subject to the provisions of sec. 1836, to construct its railroad across, along, or upon any stream of water, watercourse, street, highway, plankroad, turnpike, or canal which its route shall intersect or touch; to carry any highway, street; turnpike, or plankroad which it shall touch, intersect, or cross, over or under its track, as may be most expedient for the public good; to change the course and direction of any highway, street, turnpike, dr plankroad, when made necessary or desirable to secure more easy ascent or descent by reason of any embankment or cut made in the construction of the railroad, and take land necessary therefor: provided, such highway or road be not so changed from its original course moro than six rods, nor its distance thereby lengthened more than five rods.” Sec. 1836 is as follows: “Every corporation constructing, owning, or using a railroad shall restore every stream of water, watercourse, street, highway, plankroad, turnpike, or canal, across, along, or upon which such railroad may be constructed, to its former state, or to such condition as that its usefulness shall not be materially impaired, and thereafter maintain the same in such condition against any effects in any manner produced by such railroad. When any lands shall be required in order to change any highway, street, turnpike, or plankroad, the same may be condemned, taken, and compensation made in the manner provided in this chapter; and when so taken, shall become a part of such highAvay, street, turnpike, or plankroad to the same extent as, and by the same tenure by which, the adjacent parts thereof are held.”

While it may be argued that these provisions for condemnation relate to cases in which the line of the highway is changed to accommodate the • railroad, so that it becomes necessary to condemn lands for the highway not theretofore included in it, and while it may be admitted that the principal purpose- of the statute is to provide for such cases, yet we think it must be conceded that the language of sec. 1836 is sufficiently broad to include this case; for assuredly the highway was changed in respect to the grade, and the land of the plaintiff was required and taken in order to change it. Eecurring to the general principle already stated and applied to the case, that the plaintiff must be compensated for his land before it can lawfully be taken, it is best for all parties interested to hold that the statute provides for such taking in a case like this. If it does not, we should be compelled to hold that the legislature has no power to authorize the taking without providing for compensation to the owner, and hence that the defendant was a mere trespasser in cutting down the highway on plaintiff’s land. It is a cardinal rule that if the words of a statute admit of two constructions, one of which will make the statute valid and the other invalid, that construction will be adopted which saves the statute. This seems a proper case in which to apply the rule. We therefore construe the statute as providing for the taking and condemnation of plaintiff’s property, for which compensation must be made as prescribed in the same chapter. R. S., ch. 87.

We are next to determine whether the facts found by the court entitle the plaintiff to an injunction. The action was commenced August 18, 1881, and the finding is that the highway was graded down in July preceding. At the time of the trial nothing remained to be done to complete the work except graveling the road. Contrary to an allegation in the complaint, the railway track is not laid upon the plaintiff’s land. Under these circumstances a preventive injunction would seem to be inoperative. It could not properly go to restrain the defendant from running its trains, because they are not run upon the plaintiff’s land. It ought not to issue to restrain the defendant from completing the restoration of the highway by graveling the same, because the public interest requires that to be done. And it would be idle to restrain the defendant from further interference with plaintiff’s land, because it has no occasion to interfere further with it, unless it be to perform the statutory duty of repairing the highway. The railroad company would probably submit complacently to an injunction restraining it from the performance of that duty.

Neither is this a proper case for a mandatory injunction to compel the restoration of the highway to its original grade. The public interests require that the highway should not be again interrupted. Besides, the power of a court of equity to issue a mandatory injunction is always exercised with extreme caution — seldom exercised at all. High on Inj., § 2. We conclude that the circuit court properly denied an injunction.

It was very earnestly argued by the learned counsel for the plaintiff that inasmuch as the court assessed the plaintiff’s damages, the action should be retained, and judgment should be entered therein for the sum so assessed. We think the position is untenable. The statutes prescribe the procedure for ascertaining the compensation to which the plaintiff is entitled. This is done in the first instance by commissioners to be appointed by the court. E. S., 539, secs. 1845-1848. Either party may procure the appointment of such commissioners (sec. 1852), and may appeal from their award to the circuit court. The appeal is tried by a jury as ordinary ■ actions at law to recover damages are tried. Sec. 1849. Such procedure is entirely foreign to the functions of a court of equity. The matter involved is of such purely legal cognizance that a court of equity, from its peculiar organization, cannot afford relief. Tenney v. State Bank, 20 Wis., 152. In such a case the failure to answer that the plaintiff has an adequate remedy at law, does not waive the objection. In this case the defendant excepted to the assessment of damages, and this exception is available to it to save the judgment. Maxwell v. Hartmann, 50 Wis., 660.

By the Court.— The judgment of the circuit court is affirmed.