Groth v. Milwaukee Northern Railway Co.

Maesixalu, J. The first question presented is this: If the amount of money awarded a landowner in condemnation proceedings under sec. 1850, Stats. (1898), be paid into court within the time limited for appealing, and the railroad company does not appeal, but the landowner does, yet withdraws the money before so doing and before the company takes possession, though such possession is subsequently taken, is such landowner precluded from pursuing the appeal remedy, if the railroad company sees fit to stand upon its rights in that regard ? Under the express provisions of the section referred to, the railroad company may pay the amount of the award to the landowner or into court for his use. In case of the latter, the company being in possession of the land and the landowner appealing, he may withdraw the money without prejudice to his appeal, but cannot do so pending an appeal by the cor [541] poration, except upon filing a bond to repay the amount by which the award shall be abated on such appeal with costs. Thus it will be seen the spirit of the statute is that upon an award of commissioners being made the landowner is entitled, absolutely, to the benefit of it, conditioned only that, in case of the money being paid into court and' the corporation being in possession and contesting on its appeal the amount of the award, he cannot have the money except upon giving the bond mentioned. The idea is that, if the corporation waives its right of appeal, pays the money into court, and takes possession of the land, the landowner has, unconditionally, the right to such money and to the remedy to increase the amount as well. However, the statute does not, expressly, at least, afford the landowner the privilege of taking,the money paid into court for his benefit while yet the corporation has not elected to go into enjoyment of the premises, and still retain his appeal remedy. Whether by implication such is the case from the fact that the whole plan of the statute is to vest the right of compensation in the landowner to at least the amount of the award, upon one being made, subject to the appeal remedy in favor of the corporation, and whether the taking possession by the corporation after withdrawal of the money and not appealing waives any irregularity in withdrawing the money, as in this case, prior to the landowner appealing and prior to such possession being taken, if there be such irregularity as regards its affecting the appeal remedy, are interesting propositions, the solution of one or both of which would be necessary to decide the first question. As we view the case, it is not necessary to the disposition of the appeal to decide either, since the second question presented is decisive. Therefore, it is considered best to leave such first question undecided. The second question referred to is this: If a landowner withdraws money paid into court for his benefit, pursuant to an award in condemnation proceedings under sec. 1850, Stats. (1898), and subsequently appeals, the corporation not having [542] appealed or taken possession of tbe land, but taking suck possession thereafter, and suck withdrawal would under any circumstances constitute a bar to the appeal, and it is not suggested as suck in the particular proceeding till upon a second trial, after the appeal has been pending for a considerable length of time, and appellant incurred muck expense upon the faith of suck remedy being open to kina, and it is then brought to the notice of the court during the trial by application for leave to plead, as a supplemental defense, the fact and circumstances of the withdrawal — does the delay on the part of the corporation estop it from insisting upon such defense, or at best justify the court, in the exercise of sound judicial discretion, in refusing to permit it to be brought in by amendment or supplemental answer ? The foregoing statement of the vital proposition here is easily answered. So easily that no discussion or reference to authority is necessary. Upon the plainest principles of estoppel in pais, and loss of opportunity by laches, and competency of the court in judicial administration to exercise its judgment when to permit or deny an application to bring in new causes of action or defenses after the period for pleading as matter of right, the decision complained of seems to be well grounded and must be affirmed. By the Court. — So ordered.