Stamnes v. Milwaukee & State Line Railway Co.

The following opinion was filed October 9, 1906: Marshall, J. Counsel for appellant seems to concede, as the fact is, that the mortgage security could not be really im [88] paired so as to bind tbe mortgagee by anj mere agreement between tbe railway company and tbe mortgagor, or by any appraisal in condemnation proceedings without substituting for tbat taken a money equivalent, tbe mortgagee having an opportunity to be beard. Tbe taking tbat must thus be made good to the mortgagee obviously covered tbe whole injury to tbe estate,not tbe mere value of tbe strip of land to be occupied by the right of way. Tbat is what tbe statutes contemplate, sec. 1848, Stats. (1898), in providing tbat all parties interested in tbe condemnation proceedings must be notified, and impliedly must have leave to participate in such proceedings, and sec. 1853, Stats. (1898), providing for proceedings in favor of tbe mortgagee in case of a railway company obtainibg title to real estate subject to a mortgage lien without having provided therefor. See, also, Kennedy v. M. & St. P. R. Co. 22 Wis. 581; Aspinwall v. C. & N. W. R. Co. 41 Wis. 474. We do not overlook tbe fact tbat sec. 1848 provides tbat in condemnation proceedings there shall be appraised tbe value of tbe land proposed to be taken and tbe damages tbat will be suffered by tbe owner by reason of tbe taking, but it seems plain that tbe term “damages to tbe owner” means tbe diminution of tbe value of tbe land not taken by direct injury thereto as to tbe whole ownership therein, legal and equitable. It lias been held elsewhere under a system quite similar to ours tbat tbe award takes tbe place of tbe land as regards tbe mortgage (Platt v. Bright, 31 N. J. Eq. 81), and that tbe award in' tbe condemnation proceedings is indivisible, covering the entire value of tbe land actually appropriated and tbe injury to the land not taken, — in other words, tbe entire injury to tbe estate by tbe exercise of tbe right of eminent domain. Bright v. Platt, 32 N. J. Eq. 362, 370. Tbe foregoing is in accord with many authorities tbat might be cited. Tbe following relate to tbe matter: Utter v. Richmond, 112 N. Y. 610, 613, 20 N. E. 554; In re Eleventh Ave. 81 N. Y. 436; Baltimore & O. R. Co. v. Thompson, 10 Md. 76; Wood v. Westborough, [89] 140 Mass. 408, 5 N. E. 613; Severin v. Cole, 38 Iowa, 463; Thompson v. C., S. F. & C. R. Co. 110 Mo. 147, 19 S. W. 77; Gerrard v. O., N. & B. H. R. Co. 14 Neb. 270, 15 N. W. 231. Two brandies of appellant’s argument, viz.: that the award is excessive and that the evidence of the mortgagor’s declaration and tbe contract made with him before the commencement of the condemnation proceedings should have been admitted in evidence in order to bar any greater recovery as to him than $1,250, or at least to affect the amount of his recovery, are based on the theory that the mortgagee’s interest could not be impaired so long as there was ample value left to secure him after the taking, if no larger sum was allowed as compensation therefor than the sum Stamnes had indicated would satisfy him. ETo authorities are cited to our attention to sustain either proposition. There are two seemingly conclusive answers to them. There could be, as we have before indicated, but one award. That was required to cover the whole value of the land to be occupied and the entire damages to the land not taken. It was not competent to make an award of one sum in favor of the mortgagee and another in favor of the mortgagor. The award as to the mortgagee was to take the place of the land taken, constructively or actually. The mortgagee had a contract right to the full benefit of the value covered by his. mortgage till the mortgage indebtedness should be paid. ETo part of it could be legitimately taken from him without substituting therefor an equivalent. It was competent for him to stipulate for any amount of security he saw fit, and what he obtained it was not competent for the court to- diminish without substituting the just compensation therefor contemplated by the constitution. The contract made with the mortgagor before the condemnation proceedings were commenced, it seems, was, as respondent claims, a mere option agreement which appellant elected to abandon by commencing the condemnation proceedings. So, in any event, when such contract was offered in evidence as a [90] bar to any greater recovery as to the mortgagor than $1,250, it was properly rejected. The law is familiar that the admissions of one of several persons jointly interested may be given in evidence as. against all. That relates to situations where the one making the admission has a right to speak in some respects as agent for all. It does not apply to cases where there is a mere community of interest, or to situations where the one making the admission has no right whatever to speak for the others subsequently joined with him, as plaintiffs or defendants, in litigation respecting the subject involved. In those situations the admission is only admissible as evidence against the one making it. 1 Jones, Ev. § 254; The New Orleans, 106 U. S. 13, 1 Sup. Ct. 90; Slaymaker v. Gundacker's Ex’rs, 10 Serg. & R. 75; Lane v. Doty, 4 Barb. 530, 536; McMillan v. McDill, 110 Ill. 47; Hammon v. Huntley, 4 Cow. 493. It would seem to be the logical result of the rule stated that where the admission, as here, sought to be established could not affect the right of the person making it without affecting the rights of others joined with him in the litigation it is not admissible at all, and such is the holding in the federal case cited and in McMillan v. McDill, supra. In the former in proceedings to determine for joint owners of a vessel damages caused thereto by another vessel, evidence of one of'the owners given in another action was excluded, because not admissible as to the co-owners. In the latter case the subject is discussed at considerable length, it being stated as a general rule that where evidence of the declarations of one of several parties on the same side in litigation could only affect legitimately, in any event, himself and could not affect him without affecting his coparties it is not admissible. The reasoning of the court seems to cover fully the proposition before us. The court said: “It was incompetent as against the other defendants, and as it could not affect the issue without affecting the other defendants it was in our judgment incompetent to go to the jury [91] on the issue involved. ... If this was a case where a judgment could be rendered against one of the defendants without affecting the rights of the others there might be some ground' for admitting in evidence the declarations as against the defendant who made them; but such is not the case. . . . Testimony which defeats one defendant — one devisee — defeats all, and a judgment against one necessarily defeats all. ... If the admissions here could have gone to the jury and affected the rights of none but the one making them no error would' have been committed, but such is not the case.” To the same effect is Phelps v. Hartwell, 1 Mass. 71, cited by the court in the opinion with numerous other authorities. The foregoing covers all the matters presented for consideration by appellant. We have given particular attention to' the claim that the damages awarded are excessive. It seems that such claim is based wholly on the ideas above disapproved that the interest of the mortgagor and that of the mortgagee-are severable; that the former was willing to take $1,250 for-all injury as to him by appellant’s exercise of the right of eminent domain, and that so long as there was security enough’ left after the taking to satisfy the mortgage, the security was not impaired. It is not claimed but what there was evidence-produced by the respondent mortgagee to sustain as large an-award as that made. It follows that the judgment of the-lower court must be affirmed. By the Gourt. — So ordered.