Stewart v. Milwaukee Electric Railway & Light Co.

Bardeen-, J. The first objection to the petition is that it does not show such delay and omission of the corporation to proceed to acquire title as to give the landowner a right to institute proceedings. The land was taken in July, 1896. The law authorizing the proceeding by condemnation was published April 3,1897. The petition was presented in this proceeding October 9,1899. There was a delay of two and one-half years by the company after it had a right to proceed. This certainly gave to defendant ample time to commence proceedings if it ever intended to. That it ever intended to commence such proceedings is very doubtful, in view of its claim that the right of way had already been secured by the St. Francis Park Company. It is further urged that there is no authority of law for this proceeding. At the time the land was taken there was no law authorizing street railways to acquire right of way by condemnation. That right was granted it by ch. 175, Laws of 1897, which made all provisions of the Revised Statutes relative to acquiring land by right of eminent domain by railroads apply to street and electric railroad companies. Sec. 1852, Stats. 1898, is certainly broad enough in terms to cover a case of that kind. The company had entered upon the land with the owner’s consent. He was then entitled to his action for damages in case the company did not make compensation. The statute then came into existence which gave the company a right to proceed in any case where it had constructed its roadbed or tracks without acquiring .title, and, if it delayed in so doing, gave the landowner [544] such right. It took away the right to an injunction, and authorized the court to stay proceedings in certain cases. A new remedy was given to both parties, simple, efficacious, and prompt. It plainly applied to existing conditions, and under it this court repeatedly ruled that, when the entry was by consent, the landowner was deemed to have waived or lost his former remedy, and was relegated to his proceedings under the statute. Milwaukee & N. R. Co. v. Strange, 63 Wis. 178; Walton v. G. B., W. & St. P. R. Co. 70 Wis. 414; Frey v. D., S. S. & A. R. Co. 91 Wis. 309, and cases. We are clearly of the opinion that it was the legislative intent that the statute should apply to the then existing circumstances, and that it gave either party the right to proceed upon compliance with its terms. Another point made is that the petition failed to show that the petitioners had any interest in the land when it was taken. When the case was finally heard, the widow, as administratrix, and all the children of Stewart, were before the court. Certainly, all the parties interested in the land in any way were before the court, and the several petitions filed disclose such interest. Before ch. 175, Laws of 1897, was passed, the land had descended to, and all rights of action had become vested in, the widow and children. When the court came finally to determine upon the application, there was no one in existence having any interest in the controversy who was not before the court. The defendant further claims that the proceeding should have been dismissed because it appeared from the evidence taken that the right of way had been obtained and paid for by the St. Francis Park Company during Mr. Stewart’s lifetime. This was a disputed question of fact. No formal finding upon this precise question was made by the trial judge. His failure to do so is no doubt justified by Gill v. M. & L. W. R. Co. 76 Wis. 293. The court did, however, formally adjudicate that the petitioners were entitled to [545] compensation, which inferentially determines the contention against the defendant. The evidence being in dispute, and no decided preponderance existing in favor of defendant, we do not feel at liberty to disturb the court’s conclusion. By the Court. — The order appealed from is affirmed.