Neilson v. Chicago & Northwestern Railway Co. , 91 Wis. 557 ( 1895 )

The following opinion was filed October 22, 1895:

Cassoday, C. J.

As said in another case, a proceeding to condemn lands “is in some respects a proceeding in rem’, and hence condemnation may be hád even though the owners of or persons interested in the land be nonresidents of the' state, or their residence be unknown. Sec. 1848, R. S. -'Such proceeding, being regular, and the' amount of the .awards to the respective owners and persons interested being paid into court or to such owners and persons, and their .several receipts therefor filed with the clerk of the court, ■vests in the corporation, its successors and assigns, the title and the exclusive use of the premises condemned, and every part and parcel thereof. Secs. 1850, 1851, R. S.” Taylor v. C., M. & St. P. R. Co. 81 Wis. 86; Puling v. K. V. R. & I. Co. 130 U. S. 559. This is so, regardless of any conflicting claims to the money so paid into court, which may be -determined as prescribed by statute. Ibid.; Walton v. G. B., W. & St. P. R. Co. 10 Wis. 417. “ In other words, the chief ■concern of the company is to acquire a perfect title to the lands, and the chief concern of the respective owners and persons interested is to obtain their respective shares of the .award.” Taylor v. C., M. & St. P. R. Co., supra. Had the .award not been increased on the plaintiff’s appeal, then it is very manifest that such title to ' the land condemned in the case at bar would have vested in the defendant at the-time of .making such deposit; and, as a necessary consequence^the right to the moneys so deposited at the same time vested in •.the rightful owners of the land and those having any interest therein, whenever ascertained. The mere fact that the money so deposited could not have been drawn out by rea-.spn of-the conflicting claims to-the Same would nót-, in the event mentioned, have subjected the defendant to the payment of interest thereon; for, as indicated, the determination of such conflicting claims was a matter which concerned such owners rather than the defendant. This sufficiently disposes of the contention that each of the two findings of the-jury should be treated as a- separate 'award, instead of together constituting an award for all the lands condemned.

. Rut, as indicated in the foregoing statement, the plaintiff -did appeal from the award of the commissioners, and thereby increased the amount $74. The verdict of the-jury, therefore, stands in the place of the award. The case, therefore, is substantially the same as though the award of the commissioners had been $3,674, and the defendant only deposited the $3,600. Could the defendant in that event rightfully claim that such insufficient deposit should stop interest on that amount ? We think not. Private property can only he taken for public use, against the consent of the owner or owners, by actually making or providing just compensation therefor. Const. art. I, sec. 13; Taylor v. C., M. & St. P. R. Co. 83 Wis. 645. Providing only partial compensation is not providing just compensation. The owner or .owners are not obliged to accept of partial compensation. As the defendant, upon making such deposit, entered into the possession and use of the premises so condemned, “ the owners or parties entitled thereto” were, in the language of the statute, “ entitled to receive the money paid into court on account of the award appealed from, without prejudice to the appeal taken.” R. S. sec. 1850. Put, as indicated, they were not obliged to do so, and were at liberty to take their ■chances of increasing the award. Had the owner, in the case at bar, failed to increase the award, he would have been in no position to claim interest on the award; but, since the plaintiff succeeded in increasing the award, we must hold that the trial court properly applied the general rule, and allowed interest on the amount of the verdict from the date of the award. West v. M., L. S. & W. R. Co. 56 Wis. 318; Uniacke v. C., M. & St. P. R. Co. 67 Wis. 108. Such general rule is, of course, liable to be controlled by the circumstances of each particular case. -Ibid. True, the verdict does not technically conform to the stipulation, but the defendant was not prejudiced by the variance.

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

A motion for a rehearing was denied December, 17,1895.