Shepardson v. Milwaukee & Beloit Railroad

By the Court, Whitow, C. J This case came hereby appeal from an order of the circuit court of Milwaukee county, dissolving an injunction which had been previously granted restraining the defendants from constructing their road across the land of the plaintiff. The facts in the case, so far as they relate to the question presented, are as follows. On the fourteenth day of April, 1857, theE. E. company by their agents entered upon the land of the plaintiff, and com [612] menced the construction of their road, without the consent of the plaintiff, taking exclusive possession of a portion of the land, threatening to take such possession of the whole of the land, and to complete the construction of the road; that the damage occasioned by the construction of the road will be very considerable, and that the company has not paid or offered to pay anything to the plaintiff as compensation for the damage caused by their acts. The constitution of this State contains the following provision : the property of no person shall be taken for public use without just compensation therefor.” (Art. 1, § 13.) It has been argued by the counsel for the appellees, that although some compensation must be made by the company for the land taken for the uses of the road, it is not necessary that it should be made simultaneously with the act of taking ; that it is sufficient if compensation shall hereafter be made as provided in the charter of the company. It appears that by an act of the legisla-lature, approved March 27th, 1857, amending the charter of the company, the company .was authorized to enter, by its officers, agents &c., upon any land for the purpose of surveying and determining the route of the road; and when the route of the road should be determined by the board of directors, it was further authorized to take, possess, use and occupy the land along and including the line of said route, not exceeding one hundred feet in width. By another provision of the act of the legislature in question, the company was authorized to apply to the judge of the circuit court for the appraisal of the value of the lands taken for the use of the road. The act contains oilier provisions relating to the subject, but they do not appear to affect the question before us. It is to be observed that the act of the legislature does not contain any provision authorizing any person other than the company to apply for the appointment of the commissioners. We are of'opinion that this act, so far it attempts to authorize the taking and use of the land of individuals by the company, without making any compensation, or providing any means by which compensation can be obtained by those whose [613] property is taken, is repugnant to the section of our constitution above recited. In the case of Norton vs. Peck, 3d Wis. R., 714, we held that the authorities of a town could not take the land of a private person for the purpose of a highway, without making compensation or providing the means for ascertaining its value. In that case we said that the fact that all the taxable property of a town was liable for the damage sustained, and constituted a fund to which the owners of the land might resort for compensation as soon as the amount of damages was ascertained, might supercede the necessity of actual payment, hut the town could not take the land without at least making provision for ascertaining the value of the land taken. Admitting that the company has the same authority to take the lands of private persons for the use of its road, that towns have to take the land of individuals for the use of highways, it is apparent that this case falls within the principles settled in the case of Norton vs. Peck, above referred to. For although in this case provision is made for the appraisal of the land taken, it is entirely at the option of the company whether commissiohers shall he appointed for that purpose or not. The owner of the land has, under the act of the legislature, no power to do any act which would have the affect to compel the company to procure an appraisal of the land, or make payment therefor. He stands in the position of one whose property is taken from him without his consent, and who 'is without the power to compel payment. It was suggested by the counsel for the company, that he could apply to the circuit court, and procure a mandamus against the company to compel them to procure the appointment of commissioners to make the appraisal. Admitting that the court has the power to issue a writ of mandamus to compel a private corporation to perform a duty enjoined upon it by law, we still think that the owner of property which is taken for public use, should not he compelled to resort to such a proceeding to obtain compensation. The constitution provides that his property shall not be [614] taken for suck use without compensation, and it would, in our opinion, be most grossly violated, by compelling kim to resort to a law suit in order to recover tke value of tke property taken. In one respect tke condition of a person wkose property is taken for tke use of a railroad is quite different from that of one whose property is taken for tke use of a public highway, and that is in regard to tke fund from which compensation can be obtained. Although in theory, tke property in both cases is taken by the public, yet in the former case the property of the corporation can alone be resorted to for tke purpose of obtaining payment, while in tke latter, all the taxable property in the town in which the highway is situated, may be liable. This consideration certainly does not place the appellees in any better position in respect to the right to take private property for the use of their road, than that occupied by the town authorities in the case of Norton vs. Peck above referred to ; and as in that case we held it indispensable that compensation should be made for the property taken, without driving the owner to a suit at law to ascertain its value, or at least, that the town authorities should proceed to ascertain the value of the land taken, before appropriating it to the use of the public, so that the owners should be able to recover its value from the property of the town, we must in this case hold that the railroad company cannot enter upon the plaintiff’s land, and apply it to the use of the road without making compensation, and without taking any measures to ascertain the damage which the plaintiff has sustained by their acts. Several other provisions of the amended charter of the railroad company were discussed by counsel at the argument of the case; but as they are not involved in the question presented by this appeal, we shall express no opinion in regard to them, except the one which repeals those parts of the former charter of the company, which are repugnant to the provisions contained in the amendment. As the act amending the charter of the company, only repeals such parts of the former charter as are inconsistent with the provisions contained in the amend [615] ment, and as those provisions, so far as they relate to the taking of the land of individuals for the use oí the road, are repugnant to the constitution of the state, and therefore jn-op-perative ; it follows conclusively that the provisions contained in the former charter of the company, upon that subject, are unaffected by the repealing clause contained in the amendment. We are of opinion therefore that the company can proceed under their former charter, and appropriate the land of individuals to the use of their road, if the provisions upon that subject contained in the charter; are in other respects unobjectionable. The order of the court below must be reversed, and the case remanded for further proceedings,.