Milwaukee & Northern Railroad v. Strange , 63 Wis. 178 ( 1885 )

Cassodat, J.

The order of the circuit court refusing to set aside an order of the judge thereof condemning land for the use of a railroad company, is a final order affecting a substantial right in a special proceeding, and is therefore appealable. R. S. secs. 1852, 3069, subd. 2; Wis. Cent. R. Co. v. Cornell University, 52 Wis. 538, and 49 Wis. 162.

The purpose of the petition seems to have been to quiet the company’s title to the land in question, under sec. 1852, E. S., on -the assumption that it had already acquired a permanent right to the same. It may be questionable whether such petition could be maintained for the mere purpose of quieting title. Where that is the only purpose, it is not perceived why a railroad company should not bring its action therefor the same as any other party. But here the respondent counterclaimed and prayed condemnation and compensation. This prayer having been granted, the question is here upon the merits.

There can be no doubt but what the company, under its charter and statutes, had the right to take and condemn the land in question for its track and road-bed. Prior to sec. 22, ch. 119, Laws of 1872, amended by sec. 4, ch. 291, Laws of 1873 (sec. 1852, E. S.), there was no general statute authorizing the owner of lands, across which a railroad had been located and constructed, to institute proceedings for condemnation. These statutes expressly prohibit any injunction to restrain the completion or operation of the road until the compensation has been fixed and determined. Under these statutes it has been repeatedly held that where the owner of the land has by express or tacit consent permitted the railroad company to enter thereon, construct its road-bed and track, and occupy the same for the purposes of a railroad, he has thereby, in effect, waived-and lost his former remedy by injunction or trespass, and is relegated to proceedings under the statute to have his compensation and damages assessed. Buchner v. C., M. & N. W. R. Co. 56 Wis. 403, and 60 Wis. 264; Hanlin v. C. & N. W. R. Co. 61 Wis. 515; Sweaney v. U. S. 62 Wis. 396. This is on the theory that by such consent the owner has, in effect, yielded to the company the permanent right to maintain and occupy, subject only to the payment of compensation when assessed and ascertained, and that he will resort to no remedy except to exact and enforce the payment of such compensation. Here it appears that the railroad company was thus permitted by Mrs. Ladd, the owner of the land, to enter thereon, construct its road-bed and track, and occupy the same, for the purposes of its railroad, from 18-74 to the time she parted with her title in November, 1880. By such consent and permission she had yielded to the company the permanent right of occupancy and easement upon and over her land, subject only to compensation which she was at liberty to exact, or waive altogether.

Having yielded to the company all claim to the permanent easement except the mere right to exact and enforce payment of compensation, the question recurs, Did that right pass from her by virtue of her deed of November 6, 1880, to SPrcmge and Lawson? That deed was a conveyance of the land, and not a transfer of a claim for compensation'for an easement long prior to that time given to the railroad company. It is well established in this state that the grantee of land with such an easement upon it takes it subject to the easement. Pomeroy v. C. & M. R. Co. 25 Wis. 643; Smith v. Hughes, 50 Wis. 620. Even where the grantee of land, with such easement upon it, in public use,, takes title by deed with full covenants, yet the mere easement constitutes no breach of the covenants therein contained ; for such grantee is supposed to have purchased the land subject to such burden, and to have deducted from the purchase price an amount equal to the depreciation in value by reason of such easement. Ibid.; Burbach v. Schweinler, 56 Wis. 390. The case is clearly distinguishable from Sherman v. M., L. S. & W. R. Co. 40 Wis. 645; Blesch v. C. & N. W. R. Co. 43 Wis. 183; S. C. 48 Wis. 168; Rusch v. M., L. S. & W. R. Co. 54 Wis. 136. Such mere easement is unlike the acquisition of a corresponding: strip by conveyance in fee. Messer v. Oestreich, 52 Wis. 693; Racine v. Crotsenberg, 61 Wis. 485.

It is true that in Pomeroy v. C. & M. R. Co., supra,, the grantor reserved to herself the land occupied by the railroad, and the right to claim and receive any and all damages sustained by reason of the railroad crossing the land or running near it; but that was before the above statutes giving to the owner the new remedy of enforcing compensation through condemnation proceedings. Such remedy to enforce a mere claim for compensation is, in effect, the very thing that was so reserved in the Pomeroy Case, for in that case the land had in fact been condemned and the damages awarded. It is unlike Sweaney v. U. S., supra, where the conveyance to the plaintiff was prior to the statutes cited, and where no right to the permanent easement was acquired by the United States until long after such conveyance, and where the act of Congress giving such right secured to the then owner the right of compensation.

It follows that Mrs. Ladd never parted with her right to' the compensation, and Shrcmge and Lawson never acquired it. On the contrary, the company settled with Mrs. Ladd therefor, and she, for a valuable consideration, gave the company a full release from such claim, and acknowledged complete satisfaction therefor, before the commencement of these proceedings. The result is that Strange holds the lands subject to the easement of the company upon and over the same, and hence is entitled to no compensation therefor.

By the Oov/rt.— The order of the circuit court is reversed, and the cause is remanded with directions to grant the petitioner’s motion to correct the findings as- asked, and for further proceedings according to law.