McDonald v. Green Bay & Mississippi Canal Co.

Cole, J. The argument on the part of the respondent took a range which we do not deem it necessary to follow on this appeal. The question as to what may be the obligations or equities between the defendant company and the United States, growing out of the transfer of the works of the company to the United States, is not properly before us, and will not be discussed. This action is to recover the damages which the plaintiff has sustained in consequence of the flowage of his land by the defendant for six years before the commencement of the suit. It appears that, after the transfer of the improvement to the United States, the plaintiff instituted proceedings under ch. 119 of the laws of 1872, ch. 291 of the laws of 1874, and the act of congress (ch. 166) approved March 3, 1875, to obtain compensation for damages occasioned by the flowage of his lands. In his petition in that proceeding, he claims compensation for all the damages which he has sustained by reason of the flowage, as well before the United [338] States became the owner of the improvement as subsequent thereto. The commissioners refused to assess any damages for injuries prior to September 18, 1812, that being the time when the United States took possession of the works of the company; the liability of the United States for any damage prior to that time being denied. Roth parties took an appeal from the award of the commissioners, and that cause is now pending in the circuit court for Eond du Lac county. After that appeal, and while the cause was pending in the circuit court, the defendant company applied for and obtained a stay of proceedings in this suit until the determination of the action against the United States. This appeal is from the order granting such stay. The order staying proceedings in the first instance would not seem to be an improper exercise of the discretion of the court in the matter; but it should be vacated by the court unless the defendant (if required) give security for the payment of any judgment which may hereafter be obtained against it. “ The order staying proceedings is, of course, in all cases subject to modification or vacation by the court making it, whenever,, in the exercise of a sound discretion, the same shall be deemed necessary and proper.” Dixon, C. J., in Parmalee v. Wheeler, 32 Wis., 429-434. And therefore, if the suit against the United States should be unnecessarily delayed or unreasonably defended; or if the plaintiff should fail to recover in that suit the damages claimed in this; or if the plaintiff should be unable to collect his judgment against the United States — in each case supposed, it would be the duty of the circuit court to vacate the stay, and allow the plaintiff to proceed with this action. Possibly all the objects of this suit may be obtained in the proceedings against the United States for compensation; and, if so, its further prosecution would seem unnecessary. But, as before remarked, if the plaintiff demands it as a condition to continuing the stay, the defendant should give security according to the provisions of ch. 119, supra. By the 22d section of that [339] act, as amended by cb. 291, Laws of 1873, wben a railroad company shall not have acquired title to the lands upon wbicb its road is constructed, or if, at any time after an attempt to acquire title by purchase, appraisal or otherwise, the title acquired is found defective, the company is empowered to proceed to acquire or perfect the title; and at any stage of the proceeding, the court in which the same is pending may authorize the company to continue in possession, or to take possession during the pendency of such proceeding, and may stay all actions against the company on account thereof, upon the company’s giving security, as the court may direct, to pay the compensation when finally ascertained. Ch. 291, Laws of 1874., enacts that compensation for damages occasioned by flowage may be ascertained as provided by eh. 119; and we think section 22, as amended, is applicable to the stay in the present case. It is true, the application for the stay was addressed to the discretion of the court; but we think it would be an abuse of that discretion not to require- security in the event the plaintiff demands it. Eor he is certainly entitled to compensation, either from the defendant or the United States, for the injuries past and future which have been or may be done to his land by the maintenance of the dam. And it is no hardship to require the defendant to give security as a condition to continuing the stay. "With this expression of our views for the guidance of the circuit court, the appeal must be dismissed. By the Oowrt.— Appeal dismissed. RyaN, O. J., took no part.