Wilbur Lumber Co. v. Milwaukee Light, Heat & Traction Co.

KeewiN, J. There is evidence tending to show that tbe real estate in question was substantially damaged by tbe maintenance and operation of tbe interurban1 electric railway. In fact this is not seriously disputed; but it is insisted by counsel for respondent that tbe damages caused by the appropriation for interurban railway purposes belong to Frederick Dick, former owner of tbe land, if any damages can be recovered, and not to tbe appellant. This contention involves tbe question when tbe taking of tbe land for an interurban electric railway occurred. If before tbe appellant acquired title to tbe land sought to be condemned in this action, tbe damages do not belong to tbe appellant; if tbe taking occurred after tbe appellant acquired title, tbe damages occasioned by such taking belong to appellant. This doctrine is well established. Pomeroy v. C. & M. R. Co. 25 Wis. 641; Milwaukee & N. R. Co. v. Strange, 63 Wis. 178, 23 N. W. 432. It is true that, while tbe double-track system was not installed until 1900, two tracks were constructed over tbe property in question in 1898, and such tracks and appliances became a part of tbe double-track system and continued substantially tbe same as when originally constructed in 1898, and that from 1898 interurban cars were operated over such [356] tracks, and said cars, tracks, and appliances were used for interurban as well as for .street railway business. Upon these facts it is claimed by respondent that the land in question was taken and the damages accrued while Dick was the owner, and hence, under the doctrine of Pomeroy v. C. & M. R. Co., supra, and Milwaukee & N. R. Co. v. Strange, supra, there can be no recovery by appellant for such taking and damage. The doctrine of these cases rests upon the right to acquire property for railway purposes at the time of the entry and construction of the railroad with the consent of the landowner. At no time during the ownership of Dick was there any authority of law for the taking of the land in question, and therefore no right could be acquired in the land then owned by Dick by the mere construction and operation of an interurban road. So far as Dick was concerned, the use for interurban purposes during his ownership was a continuing trespass. Younkin v. Milwauhee L., H. & T. Co. 112 Wis. 15, 87 N. W. 861. Prior to 1901 the respondent had no right to condemn the land in question for a right of way. It had no power to take by condemnation lands within the limits of the streets of the city of Waukesha for interurban purposes. When the tracks were constructed in Pomeroy v. C. & M. R. Co. and Milwaukee & N. R. Co. v. Strange, supra, the law authorized condemnation for such purposes, and provided 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, or if at any time after an attempt to acquire title by purchase, eminent domain or otherwise, it shall be found that the title thereby acquired is defective, the corporation may proceed to acquire or perfect such title in the manner hereinbefore provided.” Sec. 1852, Stats. (1898). The “manner herein-before provided” refers' to the prior proceedings respecting the condemnation of property for railroad purposes, and the statute referred to expressly authorizes the condemnation as well after the construction of the roadbed as before, and also [357] authorizes the landowner to institute condemnation proceedings if the corporation delays or omits to- prosecute the same. .So it has been held by this court that as the law stood when Pomeroy v. C. & M. R. Co. and Milwaukee & N. R. Co. v. Strange were decided, the entry into possession of the land by the railway company and the construction of its roadbed with the consent of the landowner amounted to a taking, and thereupon the damages became the property of the landowner, and the right or easement for railroad purposes passed to the railway company, subject to payment of damages to be assessed in the manner provided by statute. Secs. 1845-184:9, 1852, Stats. (1898) ; Pomeroy v. C. & M. R. Co. 25 Wis. 641; Milwaukee & N. R. Co. v. Strange, 63. Wis. 178, 23 N. W. 432. In the instant case, up' to and long after the time that appellant had acquired title to the land, there was no law providing for compensation or damages for taking land in a street for interurban purposes. Therefore there could he no taking or permanent appropriation for such purpose by the construction of railroad tracks and appliances in the streets of the city of Waukesha for interurban purposes. There being no right to take for interurban purposes and no remedy provided for compensation during the ownership of Dick, the acts of the respondent in the use of the streets for interurban purposes operated to give it no rights whatever to any permanent use. The property did not pass from Dick to appellant burdened with any easement for interurban purposes, because no such easement was or could be created up to the time of such conveyance nor prior to the passage of ch. 465, Laws of 1901, providing for condemnation of land for interurban purposes. Therefore Pomeroy v. C. & M. R. Co. and Milwaukee & N. R. Co. v. Strange, supra, have no application. Pick v. Rubicon H. Co. 27 Wis. 433; Sweaney v. U. S. 62 Wis. 396, 22 N. W. 609. We are cited by counsel for respondent to Stewart v. Milwaukee E. R. & L. Co. 110 Wis. 540, 86 N. W. 163; but it will be seen that the controlling [358] question in the instant case, namely, to whom do the damages belong, was not in that case. Moreover, the Stewart Case is clearly distinguishable on other grounds not necessary to consider here, but which are discussed in Brickles v. Milwaukee L., H. & T. Co., post, p. 358, 114 N. W. 810. We think it clear that whatever damages, if any, accrued to Dick while he was the owner of the propery were merely for trespass occasioned by the operation of interurban cars over his property and not for a taking or permanent appropriation thereof for interurban railway purposes, and therefore the damages occasioned by the taking and appropriation of the land of the appellant for interurban purposes belong to appellant and it is entitled to recover therefor in this action. Upon the evidence produced the appellant was entitled to substantial damages, and the amount of such damages should be determined by a jury. The court below, therefore, was in error in directing a verdict for six cents in favor of appellant and awarding the respondent costs. Judgment, therefore, must be reversed. By the Court. — The judgment of the court below is reversed, and the action remanded for a new trial.