Frey v. Duluth, South Shore & Atlantic Railway Co.

Cassoday, O. J. Burhans was the owner in fee of the lands in question at the time the defendant constructed its railway over the same, as indicated in the foregoing statement. It never instituted any proceedings for the condemnation of any part of such lands, nor obtained any conveyance of the same. We must assume that its entry upon such lands, and the construction of its road thereon, were with the acquiescence and consent of such owner, subject, of course, to the payment to such owner of just compensation. Const, art. I, sec. 13. Since the statutes of 1872-73 (R. S. sec. 1852) it has been repeatedly held that, where the owner of the land has by express or tacit consent permitted the Railway company to enter thereon, construct its roadbed and track, and occupy the same for the purposes of a railroad, he has thereby, in effect, waived and lost his former remedies at law and in equity, and is relegated to proceedings under the statute to have his compensation assessed. Hanlin v. C. & N. W. R. Co. 61 Wis. 522; Taylor v. C., M. & St. P. R. Co. 63 Wis. 327; Milwaukee & N. R. Co. v. Strange, 63 Wis. 183; Walton v. G. B., W. & St. P. R. Co. 70 Wis. 418; Cassidy v. C. & N. W. R. Co. 70 Wis. 440; Kelly v. G. B., W. & St. P. R. Co. 80 Wis. 334; Taylor v. C., M. & St. P. R. Co. 81 Wis. 87. Under these adjudications, Burhans, by such acquiescence and consent, lost all right to maintain ejectment, trespass,-or injunction, or any [312] form of action based upon the theory that he still retained the title and right to the possession of the right of way so taken by the defendant. His mere conveyance of the lands in question by warranty deed to the plaintiff, after the railway had. been so constructed for two years, would not have deprived him of the right to such just compensation as had accrued to him by virtue of such taking, “ for such grantee is supposed to have purchased the land subject to such burden, and to have deducted from the purchase price an amount equal to the depreciation in the value by reason of such easement.” Milwaukee & N. R. Co. v. Strange, 63 Wis. 184, and cases there cited; Walton v. G. B., W. & St. P. R. Co. 70 Wis. 419. In these cases it is said that the mere existence of such easement constitutes no breach of the covenants contained in such warranty deed. The result of these and the other decisions cited is to the effect that the right to have such damages assessed in such proceedings, and to enforce payment thereof, is a property right which may remain in the person to whom it has accrued after he has parted with all title and right to the possession in every part of the land. This being so, we perceive no good reason why such property right did not pass to the plaintiff by the written instrument wherein Burhans, for a good and sufficient consideration paid, did expressly “ sell, assign, and transfer to ” the plaintiff all his “ right of action, claims, and demands accruing to ” him against the defendant by virtue of its taking and occupying said right of way,— especially as the plaintiff, at the time of obtaining such written instrument, owned the lands in question. The plaintiff, having thus acquired the title to the lands and such right of compensation, occupied the same position in respect to enforcing such right as Burhans did before he conveyed away the title. This being so, and upon the principles stated, the plaintiff had the same right to institute condemnation proceedings, after he had sold and conveyed to divers [313] persons most of tbe lands, that Burbans bad after be bad sold and conveyed all tbe lands. For the reasons given, we do not think’ there was error in refusing to instruct tbe jury that tbe plaintiff was only entitled to recover damages for such lots and real estate as be owned or in which be bad an interest at tbe time tbe condemnation proceedings were instituted, and that be could not recover damages for lots and real estate which be did not own or have an interest in, notwithstanding be had an assignment of such right to recover damages from Burbans. The right to such just compensation accrued to Burbans, and was transferred by him to tbe plaintiff prior to tbe time when tbe lands were platted by tbe plaintiff; and hence tbe mere fact that tbe plaintiff thereafter platted the lands did not diminish tbe amount of such just compensation as bad already accrued. "We perceive no error in tbe record. By the Court.— Tbe judgment of tbe circuit court -is affirmed. MARSHALL, J., took no part.