Dodge v. Burns

By the Cowrt, Cole, J. We are of the opinion that the circuit court erred in this case, in ruling out the evidence in regard to the application of the Milwaukee and Mississippi railroad company for the appointment of commissioners to appraise the value of the lands taken, and for the asssessment of damage for such taking, as well as ruling out the proof of the various steps in the proceedings up to, and including the [519] judgment of the circuit court on appeal, together ■with the plaintiff’s receipt in satisfaction of such judgment. The action was for trespass for entering the plaintiff’s close, and the object of the defense was to show by this testimony,,that the company, by its agents, had the right to enter upon the premises upon which the alleged trespass was committed, for the reason that said premises had been lawfully condemned, and been taken by the company for the use of the road. It will be noticed that the application for the appointment of commissioners stated that it had become necessary for the company to take, use and occupy, certain lands in the county of Eock, for the use of their track, and for depots, and materials in constructing the same, and that the company had determined to take for that purpose, lots' 23 and 24 in Smith and Bailey’s addition to Janesville. It cannot be denied, after an examination of the award, that the commissioners did in fact appraise the value of these two lots, and the damages to the owner for taking them, in accordance with the mandate of the order of their appointment. Burns being dissatisfied with this award of the commissioners appraising and determining the value of the land taken for tire use and construction of the road, properly took his appeal to the circuit court. And in the circuit court a jury, upon the testimony, gave a verdict of fourteen hundred dollars, the value of these lots, and a judgment for that amount, and costs, was entered. Burns received from the company the amount of this judgment, and signed a receipt to this effect, in which he requested and directed the judgment to be discharged on the record. It is now objected that all this evidence, which went to show that lots 23 and 24 had been condemned and taken for the use of the road, and the value of whieh had been assessed and paid to Burns, and by him received in full satisfaction: — that evidence of all these matters, was inadmissible to show the right of the company, by its agents, to go upon the land thus paid for, and the argument by which this position is sustained may be briefly stated as follows: It is insisted that the company, by these proceedings, acquired the right of taking only [520] a strip of laud one hundred feet wide, for the purpose of building the road ; that the company by its charter could only take a strip of that width ;■ and the proof introduced by the plaintiff, showing that the company had used a hundred feet wide, without that part of lot 24 upon which the alleged trespass was committed; therefore it is contended that all the evidence ruled out was immaterial and properly rejected. By the charter, the company was authorized to use and take possession of any lands adjacent to the main track, side tracks, turn-outs, and connecting tracks, beyond the limits of one hundred feet, for the purpose of erecting station and depot buildings, and other buildings, and fixtures for the transaction of the business of the company. (See chapter 61, session laws, private, 1855 ; chap. 49, Session Laws, 1850; Session Laws, 1849, page 194.) Ilow could it properly be assumed that the whole of lots 23 and 24 were not required for the purpose of erecting depot buildings, station houses, and necessary fixtures for the operation of the business of the road, or that they were not required to deposite earth and gravel taken from deep cuts, or to obtain earth and gravel, and other materials for embankments and structures necessary for the construction and repairs of the road ? As already remarked, the application for the appointment of commissioners to assess the value of these lots, stated lhat it was necessary for the company to take, use and occupy them for the track, depot, and materials in constructing the road. Under the ruling of the court it was not possible for the defendant below to show that the lots were taken by the company for any purpose whatever. Suppose it had been necessary for the company to take these lots and occupy them for buildings, fixtures, excavations or embankments, it appears to us that the application was sufficiently full and specific to authorize (he company to take them for such purposes. Furthermore we consider the position of the appellants’ counsel sound, which is, that the company having taken the lots for its use, under and by virtue of its charter and acts amendatory thereto, and having had the value of the lots assessed and damages for the taking of them, and Burns hav [521] ing appealed from tbe award of tbe commissioners, and, obtaining judgment on bis appeal for tbe value of tbe said lots, and afterwards receiving from tbe company the amount of such judgment, he is estopped from setting up any claim or right to tbe possession of those lots, so long as they are used by tbe company for any of the objects prescribed in tbe acts of incorporation. Tbe judgment in tbe circuit court was for tbe value of these entire lots, as found by tbe jury. Tbe amount of this judgment Burns received, and ordered tbe same to be satisfied of record. We can hardly see bow in a more solemn manner be could have assented, in consideration of the money awarded, to tbe company’s occupying and using these entire lots for any purpose mentioned in tbe charter. "We therefore thinlc the circuit court erred in ruling out tbe evidence which went to show that tbe company, by its agents, bad tbe right to enter upon tbe lots mentioned in tbe plaintiff’s complaint, and a new trial must be granted.