Shealy v. Chicago, Madison & Northern Railroad

Cole, C. J. We decline on this appeal to enter into a discussion of the question as to the rule of damages. That question may more properly be considered when the evidence is before the court. It is sufficient now to say that the petition states facts which authorize this proceeding of condemnation to ascertain the damages sustained, if any, by the construction and operation of the railroad along and by the petitioners’ lot. The petition states, among other things, that a public street known as Main street runs along by and in front of this lot on the northwest end thereof; that the petitioners are the owners in fee to the center of said street; that the company has constructed its railroad across Main street at right angles; that the right of way of the [474] railroad lies along the northeasterly side of the lot, being the northeasterly line thereof; that, in constructing its road across Main street,.the company, in order to obtain the necessary grade, was obliged to and did sink the track of its road-bed about fire feet below the former surface of the street, and to.the width of a hundred feet up to the northeastern boundary of the lot, and has thereby rendered the street impassable and incapable of use by the public at that point; that it was the duty of the company to restore the street to its former state of usefulness; that, in order to do this, the company graded down the street in front of the lot to the.depth of about fire feet, and, to secure a gradual slope, dug and removed the earth and soil, and used the same at other points and places on its track; that, in consequence of thus excavating the street along and over the lot owned by the petitioners, the lot has been greatly damaged and depreciated in value. These facts present a case for a condemnation proceeding within the decision of Buchner v. C., M. & N. W. R. Co. 50 Wis. 403, and 60 Wis. 264, and the circuit court properly appointed commissioners to determine what amount of compensation the company should make for the injury which it had done to the property. Therefore the order appointing the commissioners must be affirmed. But, as we have intimated, we express no opinion as to the rule of damages for any injury done the lot, or resulting from lowering the grade of the highway so as to adjust it to the grade of the railroad track, further than to say that we see no reason for unsettling the law upon this subject as laid down in the Buchner Case. It is objected that the order appointing commissioners was made at chambers, and is therefore not appealable. The record is confused upon this point. The order is dated at chambers, but the bill of exceptions states that, at the close of the trial of the question of title, the court granted the order for the appointment of commissioners. The fair in [475] ference from the entire record is that the order was made by the court, and it has been so considered. This appeal is also from an order refusing to vacate an order made at chambers denying a motion to strike out from the petition certain matter referred to in the motion, and an order overruling a demurrer to the same portion of the petition. These orders were first made at chambers, but the record shows that a motion was made in court to vacate them, which was denied. An order refusing to strike out redundant matter, when made by the court, is not appeal-able ; but, of course, an order overruling a demurrer is. But both these orders are embraced in the same court order, and we know of no way of separating what is appealable from what is not. We have therefore concluded to consider them as substantially one order. The demurrer, if treated as going to the entire petition, is bad, for the reasons already assigned. But it was in fact a demurrer to a paragraph of the petition which did not profess to state a cause of action, and is certainly an anomaly in pleading, as suggested by the counsel for the petitioners. The circuit court was clearly correct in affirming both chamber orders as it did, and its order in that regard must also be affirmed. There w'as an application made for a stay of proceedings in the cause before it was reached for argument. That motion is practically denied by our decision on the merits. By the Court.— The orders of the circuit court appealed from are affirmed, and the cause remanded for further proceedings according to law.