Chicago, Milwaukee & St. Paul Railway Co. v. Richardson

Winslow, J. Sec. 1852, R. S., provides that: “In any case when a railroad corporation shall not have acquired title to the lands upon which they shall have constructed their roadbed or track, or any part thereof, . . . the corporation may proceed to acquire or perfect such title in the manner hereinbefore provided.” The manner herein-before provided is that laid down in sec. 1846 and the following sections. Erom the statements in the petition and admissions in the answer, it appears that the railroad company constructed its branch track upon the lands sought to be condemned in the year 1890, and has continuously operated the same ever since. There can be no question, therefore, of its right to commence these proceedings under sec. 1852, above cited. It is objected, however, that the petition does not comply with the statute because it does not allege that “ it is the intention of the corporation, in good faith,” to use the land for the purpose of operating the road. It is true that such an allegation is required by sec. 1846, in a case where the railroad is only projected and not yet built; but when the road has been actually built upon the land, and has been in use more than two years, we think these allegations amply sufficient. Good faith could hardly be asserted more unequivocally than by these facts. ' It is objected, further, that the railroad company did not, in the first instance, offer any evidence to show the necessity of taking the lands sought to be taken. The strip sought to be taken is but eighteen feet wide across that part of appellants’ land upon the bank of the river. The petition and answer show that the track runs in the center of this strip, and has been in use more than two years. These facts, alone, furnish a good prima fade case of neces [160] sity, if it was in fact incumbent on the railroad company to prove necessity in the first instance,— a point not here decided. Furthermore, it appears that the appellants appeared at the hearing of the original petition, and suggested the names of commissioners of appraisal to be appointed, and that one of the names so suggested was accepted by the circuit judge. It also appears that, upon the hearing of the motion to vacate, proof was submitted by the railroad company to show the necessity of the taking of these lands. Again, if it should be said that in an ordinary case the necessity must be shown in the first instance by the railroad company, there was ample and uncontradicted proof, upon the motion to vacate, showing that appellants practically assented to the laying of the track in the place where it was laid, and acquiesced therein. If this was true, the right to condemnation was perfect without proving necessity. In fact, it was the only resource left to the property owner. Hanlin v. C. & N. W. R. Co. 61 Wis. 515. We conclude that there is no merit in the objection. The appellants further claim that a railroad company cannot condemn a part of a manufacturing plant or a Avater poAver for the purpose of a branch or side track. They practically admit that such property may be condemned for the main track, but attempt to draw a distinction between the power of condemnation for the main line and for a side track. We have found no such distinction in our statute; but it is enough to say here that the consent and acquiescence which were so amply proven conclude the appellants upon the point. By the Court.— Orders affirmed.