Manitowoc Clay Product Company v. Manitowoc, Green Bay & Northwestern Railway Co.

BashRohd, J. Tbe judgment of tbe circuit court awards to tbe plaintiff as damages for taking tbe land by tbe defendant for its right of way tbe sum of $66,900, besides interest and costs, but further adjudges that if tbe defendant within a specified time furnishes tbe plaintiff with a crossing tbe collection of $53,100 of said judgment shall be perpetually stayed. It results, therefore, that if tbe defendant furnishes tbe plaintiff with a crossing and pays tbe plaintiff tbe sum of $13,800 with interest and costs, it will be discharged from further liability. Tbe refusal of tbe court to render an unconditional judgment for $66,900 is tbe ruling complained of on plaintiff’s appeal. Tbe verdict of tbe jury establishes beyond controversy that tbe crossing provided for is practicable and that it will greatly lessen tbe amount of plaintiff’s damages by reason of tbe taking of a right of way across its property for tbe defendant’s railway. There is no con — 100 — tention that the question -was not submitted to the jury under proper instructions or that the estimate of damages is not just and reasonable. Counsel for plaintiff stand upon the proposition that the law imposes no obligation upon the defendant to furnish a crossing upon this property and hence there is m> obligation resting upon the defendant to accept a crossing in reduction of the amount of damages. Counsel for defendant asserts that the plaintiff was lawfully entitled to a crossing, and that, as in all condemnation proceedings, the award of damages must be made in view of the legal situation. In this connection it is urged upon its behalf that sec. 1810, Stats. (3898), imposes upon the defendant the duty of constructing and maintaining upon plaintiff’s property a suitable and convenient crossing. If that is the proper construction of this section it is decisive of the controversy. The material part of the section is as follows: “Every railroad corporation operating any railroad shall erect and maintain on both sides of any portion of its road (depot grounds excepted) good and sufficient fences of the height of four and a half feet, with openings or gates or bars therein, and suitable and convenient farm crossings of the road for the use of the occupants of the land adjoining, and shall construct and maintain cattle-guards at all highway crossings and connect their fences therewith to prevent cattle and other domestic animals from going on such railroad.” The railroad is here required to maintain “suitable and convenient farm crossings of the road for the use of the occupants of the lands adjoining.” Did the legislature intend to require the railroad to maintain a crossing only in case the adjoining land was used for agricultural purposes at the time the right of way was acquired ? This would be placing a very strict construction on a statute enacted for the protection and benefit of owners of land when compelled to surrender part of their property for the use of a railway company in the construction of its road. So far as it appears from — 101 — tbe record tbe plaintiff’s land was suitable for farming purposes, and might be so used if tbe clay could not be profitably removed for tbe manufacture of brick. As farming land it is considered to be worth from $150 to $200 an acre. We are not convinced that this statute is to be construed as applying to tbe particular use of tbe land at tbe time of actual taking. Tbe statute should bo liberally construed to effectuate tbe purpose of its enactment. Tbe words “farm crossings” are descriptive of tbe kinds of crossings required for the use of occupants of adjoining lands, as distinguished from highway crossings used in tbe same section and elsewhere in tbe statute, and railroad crossings, a term also used elsewhere in tbe statutes, and in respect to which different provisions are made as to their use and means of protection. Tbe statute does not say “for tbe use of occupants of adjoining farm lands,” and we cannot interpret it as having that meaning. Tbe view here expressed is supported by the history of this statute. It was first enacted as oh. 268, Laws of 1860, and was taken from sec. 44 of tbe general railroad act of New York of 1850 (ch. 140), which required tbe maintenance of “farm crossings for tbe use of tbe proprietors of land adjoining such railroad.” Ob. 268 required “farm crossings of tbe road for the use of tbe proprietors of tbe lands adjoining such railroad,” a provision somewhat more limited than that found in see. 1810. That this statute was adopted from tbe New York act has been declared by this court in Blair v. M. & P. du C. R. Co. 20 Wis. 254. Tbe supreme court of New York in 1854, in Clarke v. R., L. & N. F. R. Co. 18 Barb. 350, construed tbe language of tbe above statute, and held that it applied to a village lot through which a railroad right of way bad been purchased, and upon which a railroad embankment bad been constructed separating tbe lot into two parts. An action was brought to compel tbe railroad company to build and maintain a crossing. After declaring — 102 — that the statute was as. applicable to a right of way purchased as to a rig’ht of way condemned the court said: “Nor is this provision for making crossings in terms limited to cases where the adjoining proprietors have farms or any particular quantity of land to be benefited by the crossings, and if there is any limitation in cases within the language employed to be imposed by construction, it is merely that the crossings must be useful. In the present case I am satisfied that the defendants are under a legal obligation to malee such a crossing as is intended by the statute for the use of the plaintiff, and probably an undercrossing only would be suitable.” This interpretation had been placed upon the statute before its adoption here, and hence became a part of the law of the state. Pomeroy v. Pomeroy, 93 Wis. 262, 67 N. W. 430 , Milwaukee Co. v. Sheboygan, 94 Wis. 58, 68 N. W. 387; John V. Farwell Co. v. Wolf, 96 Wis. 10, 70 N. W. 289, 71 N. W. 109. Since the adoption of the New York statute by this state the court of appeals of that state has expressly held that the term “farm crossings” is not confined to farm lands, but was designed to compel railroads to construct and maintain such crossings over their lines as are necessary to enable owners having land abutting on either or both sides of the road to reach and work their properties. Buffalo S. & C. Co. v. D., L. & W. R. Co. 130 N. Y. 152, 29 N. E. 121. In that case before the railroad was built quarries had been opened on the farm, from which stone used in building and for cement was taken and sold, and when the road was constructed the land was used for agricultural purposes and portions of it for quarries. The railroad company insisted that it was error to receive evidence of the extent of the use or the value of the property for quarries, or to order a crossing constructed for any uses except agricultural ones. The court said: — 103 — “This statute does not limit the right of adjoining owners to crossings solely for agricultural purposes, hut they may he ordered to enable owners to remove .the natural products of the land, like stone and minerals.” The court there construed the statute liberally to carry out the purpose of the legislature. As showing a different construction of the New York stab ute by the courts of that state, counsel for plaintiff refer to Jones v. Seligman, 81 N. Y. 190, and Kerr v. W. S. R. Co. 2 N. Y. Supp. 686. Jones v. Seligman was an action by the owner of a farm to compel the trustees of a railway company to maintain fences on each side of the right of way through his land and also a farm crossing under the road. The rule is there stated that the location of a crossing should be made with reference to the necessity and convenience “of the owner of the farm,” which was really the only question there involved. There is nothing in the opinion to indicate that the earlier decision was to be overruled or that the term “farm crossing” was to be limited to adjoining lands used solely for agricultural purposes. Kerr v. W. S. R. Co. has no direct application. In that case the court held that as the plaintiff had no property along the farther side of the railroad along the Hudson river he had no right to a crossing. It is said: “Even if the plaintiff had a dock ixpon which he could go after crossing the property of the railroad, it is not clear that the court would be justified in holding the locus in quo to constitute a farm crossing within thé letter or spirit of the act. It is unnecessary, however, to pass upon that question in the case.” This court in Caldon v. C., St. P., M. & O. R. Co. 85 Wis. 527, 55 N. W. 955, has given a liberal construction to the provisions of sec. 1810, and strongly intimated that the right to a farm crossing was not to be limited to adjoining lands used solely for agricultural purposes. In that case the defendant's railroad track was crossed by a private logging — 104 — railroad constructed entirely upon the land of the Shell Labe Lumber Company, and owned and operated exclusively by that company in carrying on its lumber business. It appeared that the track of the defendant railroad was properly fenced and guarded, with the exception that the openings in the fence through which the logging road was laid at the crossing were not guarded by gates or bars. The plaintiff’s horses went through one of these openings upon the defendant’s track and were injured and the action was to recover damages for such injuries. ' It did not appear that the lands adjoining the railroad were used for farming purposes. Whether, therefore, gates or bars or cattle-guards should have been maintained at this crossing depended upon the construction of see. 1810, and the court held that section to be applicable, saying: “It is probable that the crossing in question is included in the term ‘farm crossing,’ as used in the statute, for the logging road is for the use of the owner and occupant of the adjoining land. A strict construction of the statute might require gates or bars to be placed in the openings made by the logging road; but because gates or bars would seriously interfere with the reasonable use of such road, and because, for the same reason, cattle-guards are allowed to be used at highway crossings instead of gates or bars, we think; the statute should he construed to permit the use of cattle-guards at the crossing in question.” If this statutory requirement for crossings is to- be limited solely to farming lands, then any railroad may condemn a • right of way and construct its road through property used for mining or manufacturing or lumbering purposes, however large or' extensive, without furnishing or permitting a crossing over the railroad from one part to the other part of the premises. Such a construction might and probably would in many instances cause great loss and hardship' to the owners of valuable property, or, as in the instant case, impose an unreasonable burden upon the railroad. We must hold, — 105 — therefore, that the word “farm” as employed in this section is descriptive of the crossing and not,of the lands adjoining; that the only limitation upon the crossing is found in the words “suitable and convenient” to be applied to its location, ■construction, and use as bearing upon the interests of the owner of the land and of the railroad company and of the traveling public. We conclude- that -the obligation rested upon the defendant under this statute to maintain a suitable and convenient crossing for the plaintiff over or under its right of Way, that the plaintiff was bound to accept such ■crossing in reduction of the damages in this action, that the question, was properly submitted to the jury, and that the verdict fully supports the judgment as entered. This disposes of the only question presented for decision upon plaintiff’s appeal, and it is not necessary, therefore, to -consider whether in the absence of' statutory provision the judgment could be sustained as a proper exercise by the court of its equitable powers in- condemnation proceedings. The affirmative view was adopted by the trial court in the opinion directing the entry of this judgment, under the impression, as there expressed, that sec. Í810 was not applicable to the situation. The learned circuit judge there says: “I cannot believe that the law'.of-'this state is such as to compel defendant to destroy and to. make compensation for plaintiff’s property rights in the land not taken, when defendant seeks to preserve the same-, uninjured, and will be able to do so by constructing the proposed undercrossing or subway at a comparatively small expense. If the law does that, then its effect is to force defendant, against its protest, to work a great and wholly unnecessary destruction of property value, which defendant offers to preserve and is able to do so. The needless destruction of- the value of property cannot be a result which the law sanctions or will seek to bring about.” This subject receives full consideration under a similar state of facts in St. Louis, K. & N. W. R. Co. v. Clark, 121 — 106 — Mo. 169, 25 S. W. 192, 906. It was there held that a railway company in condemning a right of way may stipulate to-provide for the owner of the land certain crossings and have the damages assessed with respect to the condition of the property with such crossings, although the statute does not in terms provide that the company may reserve to the landowner such an easement. The authorities upon the proposition are referred to in the notes to- this case in 26 L. R. A. 751. The author of the notes says that this decision in favor of the right to take property in condemnation cases, subject to certain easements of the landowner so as to- minimize his damages, is in accordance with tire weight of authority. The question was considered but not decided by this court in Thompson, v. M. & St. P. R. Co. 27 Wis. 93, and McCord v. Sylvester, 32 Wis. 451. Defendant’s appeal from the judgment was not expressly abandoned at the hearing, although its counsel stated that he was willing to accept the judgment as entered. We shall, however, consider the errors assigned on its behalf. The first error assigned relates to the ruling of the court in denying defendant’s motion for a directed verdict in its favor or for nominal damages. This assignment is- predicated upon the theory that the lessor had rightfully resumed possession of that portion of land included in the condemnation proceedings and had conveyed the same to- the- defendant, and consequently the plaintiff had no right to recover damages for the taking of that portion of the premises by the defendant. The contract reserves to- the lessor the power to retake possession of any portion of the leased premises on conditions therein specified, provided that it should furnish to the lessee an equal area of clay land selected by it, furnished with prescribed track facilities. Whether or not there had been a sufficient resumption depends on the construction to be given to this provision of the contract. The resumption could not become effectual without the selection — 107 — of tbe substituted laud by tbe party charged with this duty, and both parties in this action from first to last bare read tbe agreement as conferring upon tbe lessor tbe power of selection indicated. TJpon this construction of tbe contract, as made by tbe parties themselves, tbe effort at resumption by the lessor was not effective unless tbe selected land complied with its provisions. This was a question of fact for tbe jury, and has been answered in.favor of tbe plaintiff by tbe special verdict. Tbe second assignment of error relates to tbe refusal of tbe court to set aside the above finding of the jury. Counsel for defendant says that the tender of the selected land in, lieu of that taken was made on behalf of tbe lessor as a performance of tbe condition of resumption, and insists that it was effectual for that purpose in view, of the unconditional refusal by tbe plaintiff of tbe first tender made. Tbe defendant did not maintain that attitude 'Consistently, if it could have done so successfully, as upon the trial it made a second tender of land and submitted proof to show that tbe tracts offered met tbe requirements of the' contract. " It is further claimed by tbe same counsel that tbe evidence adduced on behalf of tbe defendant demonstrates beyond argument that tbe land tendered in lieu of tbe land resumed was a sufficient compliance with tbe condition of resumption. We cannot yield assent to this view. The testimony on .'behalf of tbe plaintiff strongly tended to show that tbe tracts so selected and tendered to it did not contain an equal area of clay land, or brick-making clay in any substantial quantities. This question of fact, supported by competent proof of either side, was properly submitted to tbe jury for determination upon tbe record as herein presented. It was not, therefore, error for the court to overrule tbe defendant’s motion to change the finding of tbe jury on this subject. Tbe assignment of error relating,to tbe form of tbe judgment cannot be sustained. Tbe “judgment is founded on tbe — 108 — verdict, which determines the amount of damages for the land taken and for injuries to the adjoining premises, with a suitable crossing as offered by the defendant, and without such crossing. The judgment awards the plaintiff the principal sum of $66,900, and then provides that upon the payment of $13,800, the value of the properly taken for the right of way, with interest and costs, and upon furnishing the accommodations therein specified within the time prescribed by the defendant to the plaintiff, the remainder of the principal sum, $53,100 and interest, shall be perpetually stayed. The judgment seems to be in substantial conformity With the offers made by the defendant on the trial. Any mere irregularity in the form adopted to enforce the defendant’s own offer which does not operate to its prejudice must be treated as immaterial on principle and by force of the statute. See. 2829, Stats. (1898). The time within which the defendant is required to perform the conditions specified in the judgment must be considered as stayed pending this appeal. By the Court. — The judgment is affirmed on the appeal and on the cross-appeal.