Milwaukee & Lake Winnebago Railroad v. Stolze

WiNsnow, J. Tbe question in this case is whether condemnation proceedings instituted by a railway corporation can be discontinued prior to tbe filing of the award and against tbe objection of tbe landowner. It was said in Morris v. W M. R. Co. 82 Wis. 541, that tbe railway company bad a right to discontinue condemnation proceedings, and Driver v. W. U. R. Co. 32 Wis. 569, and Lewis, Em. Dom. §§ 655, 656, were cited as sustaining tbe proposition. In that case tbe discontinuance was prior to tbe appointment of commissioners, and so, perhaps, it is not direct authority in tbe present case, where the attempted discontinuance was just prior to the filing of tbe award of tbe commissioners. It is generally held, however, that this fact makes no difference, and that, in tbe absence of express statutory provisions, tbe party instituting condemnation proceedings may, with tbe consent of tbe court, dismiss or discontinue tbe proceedings at any time prior to tbe filing of tbe award, or tbe confirmation of tbe award where confirmation is necessary. Lewis, Em. Dom. § 655;- 3 Elliott, R. R. § 1033. Tbe contention, however, is made that, because it is provided in R. S. [93] 1878, sec. 1848, that the commissioners shall proceed to perform their duties upon written demand of either party, and shall file their report within a certain time, therefore there is no power on the part of the railway company to stop the proceedings, but that they must proceed to a finish under the mandatory terms of the statute. This view, if logically carried out, would seem to deprive even the court of any power to arrest the proceedings of the commissioners upon any showing. Such a construction of the statute would be unreasonable. The statute was carefully framed so as to pi’ovide that the proceedings should not be delayed, but should be brought to a speedy conclusion, in the interest of both parties, for very obvious reasons; but that these safeguards against delay should be construed as taking the proceedings absolutely out of control of the court we cannot admit. 'The ordinary principle is that the moving party in actions or proceedings may, with the consent of the court, dismiss or discontinue the same at any time before the result sought for in the proceedings has been reached and the rights of the parties fixed, and no reason is perceived why this principle should not apply here. Certainly, if the proceedings cannot be stopped prior to the award, it would seem that they can never be stopped at all, because the statutory provisions as to the effect of the award upon the rights of the parties (E. S. 1878, sec. 1850) seem to preclude the idea of there being any stopping place after the filing of the award. As said in Uniacke v. C., M. & St. P. R. Co. 67 Wis. 108: “It will-be difficult to find in our statute a loous pomitentice after the award is filed, when the owner may have execution for the sum awarded if it remains unpaid for sixty days after such filing.” See, also, West v. M., L. S. & W. R. Co. 56 Wis. 318. The true principle would seem to be that the question whether the railway company should be allowed to discontinue its proceedings prior to the award is an administrative question, which must be settled by the [94] circuit court, in the exercise of a sound discretion. The right to dismiss is not absolute in the moving party, but a dismissal may be granted by the court, in its discretion, under such conditions as may be necessary to prevent injustice. In re Waverly Waterworks Co. 85 N. Y. 478. We cannot say there has been any abuse of discretion in the order of dismissal in the present case. By the Oowrt.— Order affirmed.