Wright v. Wisconsin Central Railroad

Lyon, J. The respondent, the railroad company, having located its line of railroad upon and across certain lots of land in Waupaca county, procured appraising commissioners to be appointed as provided in its charter, and such commissioners, upon the application of the company (as appears by their report), caused to be given to the plaintiff Charles Wright, at the time and in the manner required by such charter, notice of their meeting to fix and determine the value of the land, portions of such lots, which the company proposed to take for the use of its railroad. At the time appointed therefor, a majority of the commissioners made .such appraisal, and specified in their reports thereof the sums to be paid by the said company to Charles Wright, the owner of such lots. All of these proceedings seem to be in due form, and in all of them Charles Wright is recognized and treated as the owner of the land condemned. The reports of the commissioners of such appraisal were duly filed in the office of the clerk of the circuit court for Waupaca county; and, witMn the time allowed by law for taking an ap [343] peal from such appraisals, both plaintiffs appealed therefrom to the said circuit court. The notice of appeal, which purports to ’ be signed by both plaintiffs, states that Caroline L. Wright is the owner of the lands affected by the proceedings, and that she is the wife of Charles Wright. Subsequently, upon the motion of Mrs. Wright, and on her affidavit setting forth the same facts which are stated in the notice of appeal, the court granted an order making her a party plaintiff to the proceedings. The company then moved the court “ that the said action and all proceedings therein be dismissed and discontinued; ” and thereupon the court made the following order :■ “ It is ordered that said respondent have leave to dismiss its said proceedings, and that the said awards be set aside, and all proceedings under them be discontinued; and it is further ordered that said appellants have costs, as in case of nonsuit granted.” From this order the plaintiffs, the appellants in the circuit court, have appealed to this court. The case of Strong v. The Beloit and Madison R. R. Co., 16 Wis., 635, settles the practice in proceedings like that under consideration. It was there held that, on an appeal from the appraisal of commissioners in such cases, the company, for the benefit of which the land is sought to be condemned, will not be permitted to dismiss the proceedings, unless good cause therefor be shown. Was good .cause therefor shown in this case? It is contended by the appellants that no- cause whatever for dismissing the proceedings was shown by the railroad company; but the record shows that the damages were appraised to Charles Wright, who was not the owner of the land affected by the proceedings. We think this a sufficient cause for dismissing the proceedings. The circuit court gave the appellants costs as in case of a nonsuit In view of the fact that the erroneous proceeding? were originally instituted by the company, this was equitable [344] and just, and leaves tbe appellants no reasonable grounds of complaint against tbe order appealed from. Mrs. Wright bas not been delayed by tbe proceedings, or, at least, sbe bas not been necessarily delayed, in obtaining compensation from tbe company for ber land, because sucb proceedings did not interfere with ber right to call out tbe commissioners at any time to appraise ber damages, pursuant to tbe provisions in that bebalf contained in tbe charters of tbe respondent. P. & L. Laws of 1866, cb. 314, sec. 18; id., cb. 362, sec. 19. See also P. & L. Laws of 1869,' cb. 257; and P. & L. Laws of 1871, cb. 27. It may be claimed that Mrs. Wright, by voluntarily becoming a pai-ty to these proceedings, would be barred by tbe judgment of tbe court therein, tbe same as though sbe bad been treated from tbe first as tbe owner of tbe land, and tbe damages bad been awarded to ber as sucb owner, instead of ber bus-band. But, whether sbe would or would not be so bound, we think that where tbe company bas, as in this case, inadvertently commenced sucb proceedings against a person who is not tbe owner of tbe land sought to be condemned, it should be permitted, at any time 'before judgment against it upon tbe award of tbe commissioners or upon appeal therefrom, to discontinue sucb proceedings upon equitable terms, to tbe end that it may institute such proceedings against tbe real owner of tbe land. Otherwise tbe company might be compelled to pay twice for tbe same land. Tbe order of tbe circuit court must be affirmed. By the Court. — - Order affirmed.