Walton v. Green Bay, Winona & St. Paul Railroad

Cassoday, J. The answer put in issue the plaintiff’s title to the strip of land in question. This being so, he was only-entitled to compensation upon making proof of title or some interest in himself. Diedrich v. N. W. U. R. Co. 42 Wis. 248; Winchester v. Stevens Point, 58 Wis. 355. Without such title or interest he rvould have no right to enforce proceedings in condemnation. It is urged that as the plaintiff owned the land at the time of filing the petition, it was the duty of the court to appoint commissioners, regardless of the question whether he would have been entitled to any compensation that might have been awai’ded. In other words, that the power of the court upon the hearing of such petition was limited to the determination whether the railroad company was entitled to the land described, and hence that the question of the plaintiff’s title should be determined in the first instance by the commissioners, subject to a retrial in the circuit court on appeal. Sec. 1849, E. S. It is true the statute makes it the duty of the commissioners to view the premises, hear the allegations of the parties, and “ appraise, ascertain, and determine the value of each such tract or parcel of land, . . . with the improvements thereon, and of each separate estate therein, and the damages sustained by the owner by reason of the taking thereof, and fix the amount of compensation to be made to each of such owners therefor.” Sec. 1848. So the statutes provide for the determination of any conflicting claims to 418 the'compensation awarded. But the view we have taken of the case renders it unnecessary here to determine the question suggested. The petition may be addressed to the judge of the court as well as to the court. Sec. 1846. Such judge may hear the parties interested and appoint commissioners. Sec. 1841. It may be very doubtful, however, whether such judge at chambers can conclusively determine on such hearing the petitioner’s want of title to the land. But the statute makes the “ filing of such petition ” with the clerk of the court “ the commencement of a suit in said court.” Sec. 1846. Here the petition was addressed to the judge, but was so filed November 1, 1886, and, upon the issue of title being joined, the parties appeared in court, pursuant to stipulation, and the plaintiff voluntarily undertook to prove title to the strip of land in question in himself. From the proofs offered it appears that his title rests upon a quitclaim deed Rom the county to himself; executed December-21, 1814, and recorded the next day, with the authority to Inake it. That was some two years after the strip of land had been taken and the railroad constructed thereon. The court certainly had jurisdiction, upon such voluntary hearing, to determine whether, upon such proofs, the plaintiff was entitled to enforce such condemnation proceedings. It is essentially the same as though the petition had alleged the acquisition of title by the plaintiff at the time named, and the court had then refused the application for the insufficiency of the petition. This brings.us to the question whether, upon such showing, the plaintiff was entitled to compensation for the land taken. It is settled in this state that where the owner of the land has, by express or tacit consent, permitted the railroad company to enter thereon, construct its road-bed and track, and occupy the same for the purposes of a railroad, he has thereby, in effect, waived and lost his former remedies, and is relegated to proceedings under the statute 419 to have his compensation and damages assessed. Milwaukee & N. R. Co. v. Strange, 63 Wis. 178, and cases and statutes there cited. So it has, in effect, been established that where land has thus been entered upon and taken by a railroad company, and its road-bed and track constructed, and occupied for the purposes of a railroad with such permission of the owner, his subsequent conveyance thereof, without any transfer of any claim for compensation, passes the title subject to the easement, leaving the right to such compensation and damages in such grantor. Ibid. In such case it has been recently .held in Illinois that such subsequent grantee has no right of action against such railroad company for the proper use and operation of its road after such purchase. Chicago & E. I. R. Co. v. Loeb, 118 Ill. 203. The same, in substance, has recently been held in Pennsylvania, in respect to a subsequent lessee for years. Davis v. Titusville & O. C. R. Co. 114 Pa. St. 308. Here the quitclaim deed under which the plaintiff claims title makes no reference to such taking or occupancy by the railroad company, nor to any compensation on account of the same; much less does it attempt, even by inference, to transfer any right to such compensation to the plaintiff. If such right of compensation ever existed, it remained in the plaintiff’s grantor, who owned the premises when the strip of land was so taken and the railroad so constructed, unless there has been some valid transfer thereof not disclosed by this record. Dy the Court.— The judgment óí the circuit court is affirmed.