Wisconsin Central Railroad v. Cornell University

The following opinion was filed March 24, 1881: Cassoday, J. The order of the circuit court here for consideration was appealable. Wis. Cent. R. R. Co. v. Cornell University, 49 Wis., 162. [540] Whatever may have been the wording of the charter of the Wisconsin Central Railroad Company, we are inclined to think that, as the law stood at the time these proceedings were instituted, the railroad company was limited to 100 feet for its right of way, unless the necessity for taking more should be first shown. Section 1845, R. S., provides that “ any railroad corporation may acquire any real estate, which it shall be authorized to take for the purposes of its organization, in the manner hereinafter prescribed, and every provision for that purpose heretofore made in any special law or act of incorporation, or amendment thereto, is repealed.” Section 1829, R. S., provides that “all existing or future railroad corporations within this state, including such as were originally organized under chapter 73 of the Revised Statutes of 1858, shall respectively have and possess all the powers and privileges, and be subject to all the duties, liabilities, and restrictions, prescribed by this chapter, and shall also have all peculiar rights and privileges granted to them respectively by their charters or any special law, not inconsistent with these statutes.” Among the powers given and rights regulated by section 1828, R. S., we have subdivision 4, which provides that the company shall have power “ to lay out its road, not exceeding one hundred feet in width, and to construct the same; and for the purposes of cuttings and embankments, and of obtaining gravel or other material, to take as much land as may he necessary for the proper construction, operation and security of the road, and to cut down any standing trees that may be in danger of falling on the road, making compensation therefor as provided in this chapter for lands taken for the use of the corporation.” By these statutes the legislature have evidently determined for themselves the necessity of taking 100 feet for a proposed right of way; but, as to the taking of lands outside of the 100 feet, they have left the necessity to be determined in the manner prescribed by the statute. Such necessity in each instance must depend upon the facts of each particular case, to be as [541] certained by the judicial proceedings provided. Of course, when the'facts are controverted — when the necessity alleged in the petition is denied, as in this case,-— the determination must depend upon the proofs adduced upon the hearing. When the facts as to the necessity of taking more than 100 feet, so alleged, are denied, and no proofs are offered, there can he no condemnation outside of the 100 feet, because in such case the necessity has not been established. As to the 100 feet, the legislature have obviated proof of the necessity, or, rather, have furnished a conclusive presumption of it, by a legislative fiat. As the land outside of the 100 feet cannot be condemned until the necessity is established by proof, it conclusively follows that the burden of making the proof is upon the party seeking the condemnation. Such has been the construction given to similar statutes in other states, and it is difficult to see how any one could have thought otherwise. R. & S. R. R. Co. v. Davis, 43 N. Y., 137; In re N. Y. Cent. R. R. Co., 66 N. Y., 407. If the same proceedings were still pending in Chippewa connty, it may be doubtful whether the circuit court or judge of Taylor county could take jurisdiction. Cornell University v. Wis. C. R. R. Co., 49 Wis., 158. But, as there is some discrepancy in the record, we refrain from any determination of this point. By the Court.— The order of the circuit court is reversed, and the cause is remanded with directions to enter an order vacating the order madeby the circuit judge October 25,1879, and for further proceedings according to law. On the 21st of April, 1881, the respondent moved, upon the record, for a modification of the order of this court in the cause, “and, if necessary to procure such amendment,then for a rehearing ” of the cause. The modification proposed was the insertion of the following words immediately after the words “ October 25th, 1879,” in the order as above stated: [542] “ So far as it authorizes the taking of any land of said Cornell University outside of the strip, one hundred feet in width, which includes fifty feet on each side of the center line of said railroad as now located.” In support of this motion Mr. Abbot argued that the appellant’s answer did not deny the respondent’s right to take one hundred feet in width, and the foregoing opinion declares that the respondent was conclusively entitled to take a strip of that width, under its petition, by force of the statute; but that the order of this court, if not modified, would require the institution of new condemnation proceedings, to enable respondent to acquire title to the one hundred feet. He also stated that if the court, before making such modification, should order a reargument, he would ask leave to argue the question whether, without any independent testimony, the necessity of the desired width was not sufficiently established by facts judicially known to the court; and he suggested that the court would take judicial notice of the geography of its own jurisdiction; and that, from the character of the land in Price county through which the respondent’s road passes, as thus known, it might also conclude without formal proof that more than one hundred feet were required for the right of way. Wis. C. R. R. Co. v. Cornell University, 49 Wis., 162, 164, 165. In opposition to the motion Mr. Bailey contended, among other things, that the pendency of another proceeding for the same cause was pleaded by the answer, and that the appellant had the right to have that issue tiled. The motion was denied June 22, 1881.