Pfeifer v. Sheboygan & Fond du Lac Railroad

By the Court, PAINE, J. The plaintiff in this case owned lands which were taken by the Sheboygan & Mississippi R. R. company for railroad purposes. Legal proceedings were had to assess the damages, which resulted in a judgment in the plaintiff’s favor, which, however, was never paid. The road and property of the company were subsequently sold on a mortgage, and purchased for the benefit of the bondholders, who organized the company that constitutes the present appellant. This action was brought to compel the new company to pay the amount of the plaintiff’s judgment for damages. The counsel for the company contends that it is not liable, and relies on the recent decision of this court in the case of Vilas v. The Milwaukee & Prairie du Chien R. R. Co. But the case presents an entirely different question. In that case the plaintiff had consented to a conveyance of his title to the old company, so that he was left merely a general unsecured creditor. It followed that the new company which was organized by the purchasers at the mortgage sale, could not be held liable unless upon the broad rule that such purchasers organiz [157] ing anew under tbe statute, were in legal effect a mere continuation of tbe old company, and liable for all its debts. Such a conclusion we held could not be sustained. And it would follow from that decision that if tbe new company here bad asserted no rights under its purchase except those which the mortgage.sale gaye as complete and perfect against all paramount claims, it would not have been liable to this plaintiff upon the mere ground that he had a judgment against the old company. But such was not the case. On the contrary it took possession of the plaintiff’s lands, and continued to run its cars over them, even in defiance of an injunction. Such a taking possession and assertion of right constituted a plain election by the new company to adopt the original taking and to receive the benefit of it. It becomes, therefore, a case for the application of the familiar maxim, qui sen-tit commodum sentiré débet et onus. The rights of the old company in the land were not paramount to those of the plaintiff, until the damages were paid. Perhaps he might have fallen back upon his original rights as owner, and treated the company as a trespasser ah initio, if it neglected for an unreasonable time to pay them. But if he did not do that, but asked only for his pay, the proceedings to condemn the land and assess the damages would stand as valid for those purposes to give the company such rights as it could get prior to payment. Then, if the purchasers under the mortgage step in and assert those rights, they must assert them subject to the condition upon which they exist, that is, the payment of the damages. The counsel suggested that if these damages had not been paid, the company was a trespasser, and the plaintiff might have his remedy for the trespass, but it ought not to be held liable for the judgment against the old company. But certainly the old company would be estopped from setting up in answer to a claim by a land owner for damages, that it was a mere trespasser because it had already unreasonably neglected to pay those damages, and therefore the owner could only re [158] cover for the trespass, and could not treat it as liable for having taken bis lands for railroad purposes. The owner might perhaps treat it as a trespasser, but it does not rest with the company to assume the character of a mere wrong doer or of one taking lands under its charter, according to whichever position might best suit its convenience. Having entered under the charter, so long as the owner chooses only to hold it to the responsibility of a legal taking, it is estopped from casting off that character and replying that it is only a trespasser. And if the old company would be so estopped, the new one, after having entered and asserted the rights of the old, thus ratifying and adopting the original taking, is equally estopped. “ A man will be bound by that which would have bound those under whom he claims, quoad the subject matter of the claim ; for qui sentit commodum sentiré debet et onus; and no man can, except in certain cases which are regulated by the statute law and the law merchant, transfer to another a better right than he himself possesses; the grantee shall not be in a better position than he who made the grant; and therefore privies in blood, law and estate shall be bound by, and take advantage of, estoppels.” Broom’s Legal Maxims, 452 (marg. p. 556.) The entry by the new company must be referred to its character as purchaser under the mortgage and successor to the rights of the old, and it is not at liberty to repudiate this character. And “ if a person accepts anything which he knows to be subject to a duty or charge, it is rational to conclude that he means to take such duty or charge upon himself, and the law may very well imply a promise to perform what he has so taken upon himself.” Broom’s Legal Maxims, 451, 452. The appellant claims that the amount of the costs in the injunction suit, to which the appellant was also a party, and which in that suit were adjudged solely against the old company, are improperly included in this judgment. But we see no exception which raises that question. The judgment is affirmed, with costs.