Andrews v. Farmers' Loan & Trust Co.

Colb, J. This action is brought to restrain the railroad company from using its track or operating its road over the premises mentioned in the complaint, until the company makes compensation for the land taken for its road, and also pays the amount of the Russell judgment therein described. A judgment was rendered granting in part the relief asked. This judgment we deem erroneous. By section 2, chap. 175, Laws of 1861, it is’provided that when a railroad company has appropriated land for the use of its road, without having the damages assessed, and without making compensation, the person interested in such land may have commissioners appointed at the expense of the company, or may call out the commissioners authorized hy the charter of the company, to appraise the damages; and [292] it declares that “no injunction shall be granted by any court to prevent the use or occupancy of such land by any railroad or railway company, until the amount of damages to which any owner or person interested [is entitled] shall have first been liquidated, or final judgment rendered therefor.” It will be readily seen that this statute changes the law in regard to granting injunctions which was in force when the cases of Davis v. The La Crosse & Miss. R. R. Co., 12 Wis., 16, and Ford v. The Chicago & Northwestern R. R. Co., 14 id., 609, were decided. See likewise Pettibone v. La Crosse & Mil. R. R. Co., id., 443. In the case of Pfeifer v. The Sheboygan & Fond du Lac R. R. Co., 18 Wis., 155, the lands had been appropriated to railroad purposes by the Sheboygan & Mississippi Company, and damages had been assessed, but never paid. The road had been sold on a mortgage foreclosure, and purchased for the benefit of the bondholders, who had organized and formed the defendant company. And the action was brought to compel .the new company to pay the judgment for damages assessed for the land taken for the use of the road by the old company. It was held that the action would lie. But it is not apjDarent how the doctrine of the Pfeifer case can apply here. It certainly cannot have any application unless, indeed, the judgment obtained by Russell in November, 1858, against the Racine & Miss. R. R. Co., can be treated as a judgment for damages for taking the premises for the use of the road. But that judgment was recovered by Russell in an action of trespass brought by him against the railroad company. It is so described in the complaint in this action, and the record in that case, which was offered in evidence, shows most indubitably that that action was for trespass quare clau-sum, and was not for obtaining compensation for the land taken. It is true that it is alleged in the answer that the judgment in the case of Russell v. The Racine and Miss. [293] R. R. Co. was entered by stipulation between tbe parties thereto, and that it was tbe intent and meaning of tbe parties that tbe judgment should include all damages, past and prospective, resulting to all parties interested in tbe premises by reason of tbe appropriation and use of tbe half of tbe street for railroad purposes; but nothing of tbe kind appears in tbe record of that case; and tbe plaintiff obviously does not so understand tbe nature and character of that judgment. For be asks that tbe company be enjoined from using its track upon tbe premises until it makes compensation for all damages sustained by’him for tbe use aforesaid, to tbe amount of $1,000, and pays tbe Russell judgment, and also acquires tbe right, in tbe manner provided by its charter, to permanently appropriate tbe premises for railroad purposes. This shows that tbe plaintiff did not suppose that tbe Russell judgment was for damages for appropriating and occupying tbe street and premises for tbe use of tbe road — as it evidently is not; and tbe complaint is not framed upon that theory. Damages for taking tbe land are still to be assessed; and tbe law of 1861, above cited, enacts that no injunction shall issue to prevent tbe company from using its track over tbe land until tbe amount of damages to which tbe owner is entitled shall have been liquidated, or final judgment rendered therefor. Tbe injunction in this case seems to be in violation of this statute. Eor it restrains the' defendant from operating tbe railroad over tbe half of tbe street adjoining tbe lot mentioned in tbe complaint, until tbe Russell judgment and interest thereon are paid; or until proceedings are instituted by tbe company to have tbe damages assessed by reason of locating its track thereon. Whether, in any event, considering tbe matters stated in tbe answer and appearing in tbe evidence, tbe Farmers’ Loan & Trust Company can be held liable to pay tbe Russell judgment, is a point upon which we express [294] no opinion at this time. Even if liable to pay that judgment, this judgment for a perpetual injunction must he reversed. By the Court. — The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings according to law. On a motion by the respondent for a rehearing, Mr. Carpenter argued, 1. That since the constitution of this state vests in the circuit courts jurisdiction at law and in equity, and provides for the issue of the writ of injunction, the legislature cannot forbid this writ in a case where, by the general principles of equity jurisprudence, it is the appropriate remedy. 2. But for ch. 175, Laws of 1861, plaintiff would unquestionably be entitled to the writ in this case, unless defendant could show that by purchase,, or by an exercise of the right of eminent domain, it has acquired the right to use and occupy the premises in question. Bonaparte v. R. R., Baldwin, 205, and cases there cited; Terrett v. Taylor, 9 Cranch, 43, 55; Bank of Hamilton v. Dudley, 2 Pet., 526. 3. “ To render the exercise of the power of eminent domain valid, a fair compensation must in all cases be previously made to the individual affected.” Gardner v. Newburgh, 2 Johns. Ch., 166; and the constitutional provision forbidding his property to be taken without such compensation “ would be most grossly violated by compelling him to resort to a law suit in order to recover the value of the property taken.” Shephardson v. R. R. Co., 6 Wis., 613. See also Bonaparte v. Railroad, Supra; Johnson v. Alameda Co., 14 Cal., 106; Colton v. Rossi, 9 id., 595; Penrice. v. Wallis, 37 Miss., 172.