Putney Bros. v. Milwaukee Light, Heat & Traction Co.

TimxiN, J. The appellant is a corporation and in March, 1895, succeeded to the general mercantile business of Put-ney Bros, (a copartnership) carried on in a store abutting on Broadway in the city of Waukesha. Putney Bros, on November 1, 1892, leased from LI. M. Erame all of the first floor of store No. 329 Broadway and running through to South street, and all of the cellar under said floor and the room in the second story facing on South street, for the term of five years, with the privilege ix> the lessees of a second term of five years on the same terms and conditions. There was a covenant not to under-lease the premises or assign the lease without the consent of the lessor in writing. The lease was nevertheless in 1896 transferred to the corporation appellant, and it continued the business and remained in pos [382] session -under said lease up to November 1, 1902. Some days after U. M. Erame executed to the corporation appellant a new lease running from ETovember 1, 1902, for one year, and in August, 1903, extended in writing this last-mentioned lease to January 1, 1904. On the last-mentioned date the appellant vacated the leasehold premises and the leasehold came to an end. It appears from the award of commissioners and from certain excerpts from the defendant’s articles of incorporation and from certain excerpts from its petition for the appointment of commissioners that the defendant is a street and interurban railway corporation, and some time prior to December 28, 1904, but after the expiration of appellant’s leasehold estate, filed a petition for the appointment of commissioners for the purpose of condemning and permar nently appropriating so much of the lot in which plaintiff owned a leasehold interest as lies within the public highway known as Broadway for a right of way for said interurban railway and for the construction, maintenance, and operation thereon of the double-track interurban railway authorized by defendant’s articles of incorporation from the city of Milwaukee, through the city of Waukesha, over and along and upon said street and over public streets aiid highways to towns or places beyond said city of Waukesha, etc. The evidence on -the part of the plaintiff tended to show some damages to plaintiff’s leasehold prior to- Ebvember 1, 1902, and no evidence was offered on the part of the defendant except a release of damages by H. M. Erame, the owner of the land, executed to the defendant about the year 1900. In his decision on defendant’s motion for a directed verdict the circuit judge recites that the petition for condemnation was filed October 14, 1904, and the award of the commissioners, as shown by another recital and by evidence, was filed January 10, 1905. The trial court held that, the leasehold interest of the plaintiff having expired long before the petition for the appointment of appraisers, plaintiff had no [383] estate or interest to be condemned or taken. In this he was correct, bnt he was inconsistent in directing a verdict in favor of the plaintiff for nominal damages. This is not, however, an error of which appellant can complain, because it was not entitled to any damages whatever to be assessed in a condemnation proceeding. But the fact that Mr. Erame released damages does not affect the plaintiff’s right to recover. 2 Lewis, Em. Dom. (2d ed.) p. 1408, § 649, and cases in note 83. Nor does the fact that the lease was not assignable without the consent of the landlord affect the plaintiff’s right to recover, because the defendant cannot challenge the validity of such assignment. 1 Taylor, Landl. & Ten. (9th ed.) § 402 et seq. But the plaintiff is precluded from recovering in this condemnation proceeding because its title expired before the institution of the condemnation proceedings, and such proceedings cannot be used for the recovery of damages for past trespasses not associated with the taking of the land. Eor such wrongs the remedy of the plaintiff is in trespass, and the nominal damages awarded plaintiff in this action will be no bar to an action for past trespasses because they are not within the issues upon condemnation proceedings. Carl v. S. & F. du L. R. Co. 46 Wis. 625, 1 N. W. 295; Blesch v. C. & N. W. R. Co. 43 Wis. 183; 2 Lewis, Em. Dom. (2d ed.) p. 1149, § 507, and cases in note 80; Randolph, Em. Dom. p. 321, § 352, and cases in note 6. It follows that the appellant is not aggrieved by the direction of a verdict in its favor, and, there being no other error in the case not covered by this decision, the judgment ought to be affirmed. By the Court. — The judgment of the circuit court ia affirmed.