Jeffery v. Osborne

The following opinion was filed January 10, 1911: WiNslow, C. J. This is a proceeding by an electric railway company to condemn a strip of land 100 feet in width running through the manufacturing plant of the respondents at Kenosha. The case was once here upon an appeal from the verdict of a jury fixing the damages at $125,000 (Jeffery v. C. & M. E. R. Co. 138 Wis. 1, 119 N. W. 879), and the judgment was reversed and the action remanded for a new trial. While the case was pending here the railway company was placed in the hands of receivers in an action in the federal courts, and upon return of the case to the trial court such receivers were made parties defendant on their own application. A second trial resulted in a general verdict for — 354 — tbe plaintiffs, assessing the damages at $133,000. From judgment against the railway company upon this verdict the receivers have appealed. Some preliminary questions are raised which will be first considered. Immediately after the order made by the trial court admitting the receivers as parties to the action, they presented a petition for the removal of the case to the United States court on the ground that the case became one of federal cognizance, such receivers being officers of the United States and the matter in litigation involving property in the hands of such receivers. This application was denied and, as we think, rightly so. The receivers came into the action not as necessary parties thereto, but simply as proper parties to maintain and defend the property rights which had been placed in their hands. They succeed to the interests of the railway company, but their rights in the case are no broader than the rights of the corporation itself. They take the suit as they find it, subject to the disabilities of the party whose interests they represent. Their presence raises' no question of federal cognizance. Speckert v. German Nat. Bank, 98 Fed. 151; Gableman v. P., D. & E. R. Co. 179 U. S. 335, 21 Sup. Ct. 171. The judgment in the case was rendered in terms against the railroad company, and further provided that, upon payment into court of the amount of damages awarded, the exclusive use of the condemned premises should vest in the company for railroad purposes. The notice of appeal was entitled in the case, giving the names of both the company and the receivers as defendants, and gave notice that the receivers appealed from the judgment “rendered by the circuit court of Kenosha county in the action above entitled, entered on the 30th day of November, 1909, in said court in favor of the plaintiffs and against said defendants.” The undertaking accompanying the notice also described the judgment as — 355 — one recovered against tbe receivers. Upon these facts the respondents now claim, first, that the receivers have no right of appeal, and, second,, that they have not in fact taken an appeal. Both contentions must be overruled. As before stated, the receivers were proper parties to the action. By their order of appointment they were required to take possession of the property of the defendant corporation, manage its business, and prosecute and defend all such actions as might be necessary or advisable for the proper protection of the property and the trust vested in them. It was plainly their duty to defend these proceedings, and just as plainly their duty to take an appeal from the judgment if, in the exercise of a reasonable and sound discretion, it seemed that prejudicial error had occurred, by reason of which the amount of the award had been increased. The strip in question had been taken possession of by the railroad company and $50,000 had been paid into court by the company as damages, being the amount awarded by the commissioners. The rights of the company in the strip were valuable and it was essential that those rights be protected by the receivers. As to the right of the receivers to appeal from the judgment there can be no serious question. The general rule is that where interests have been acquired in the subject of the controversy by legal succession, such as the interests acquired by administrators, or assignees in bankruptcy, or receivers, the persons acquiring such interests may, on being made parties to the proceeding, prosecute an appeal from a judgment against the party whose interests they represent. Elliott, Appellate Procedure, §§ 133, 131. As to the form of the notice and undertaking on the appeal there is doubtless something to be desired. The judgment was not described with exact legal accuracy in either paper; nevertheless there was no possibility of mistake. The action was correctly entitled, and the dates and amount of the judgment properly given. It was called in the notice a judg — 356 — ment against tbe “defendants” and in tbe undertaking a judgment against tbe receivers, naming them in tbeir official capacity. In legal effect tbe judgment might properly be said to be a judgment against tbe receivers in tbeir official capacity, because while it did not bind them personally it way adverse to tbe interests of tbe trust which they represented and were bound to protect and defend, and in this sense was a judgment against them. In any event there could be no question as to tbe judgment which was referred to in tbe appeal papers, and tbe verbal inaccuracy, if any there was, in tbe notice and undertaking cuts no figure. We pass now to tbe merits of tbe appeal. Tbe piece of land which has been condemned here is a strip 2.3 acres in extent and is 100 feet wide and 1,013 feet long north and south, running through a large automobile manufacturing plant. While it took no substantial buildings, it separated the principal buildings of tbe factory on tbe east from tbe testing track on tbe west and took space upon which a building bad already been begun. Tbe factory was situated in tbe outskirts of tbe city of Kenosha and there was vacant land to tbe west and to tbe north. Tbe witnesses for tbe plaintiff, who placed tbe damages at somewhere from $125,000 to $200,000, all testified that opportunity for expansion bad much to do with tbe value of manufacturing plants and sites, and tbe testimony was further to tbe effect that by tbe taking of this right of way tbe opportunity of expanding tbe factory upon tbe premises owned by the plaintiffs on tbe west was very seriously impaired, if not practically destroyed. Tbe plaintiff Thomas B. Jeffery himself testified that after tbe condemnation proceedings were commenced be bad purchased lands immediately north of bis buildings and east of tbe right of way, comprising something less than thirty acres, at $1,100 to $1,200 per acre, and that be also purchased a block of land on tbe east of bis factory for $24,200. Upon these premises so purchased be bad erected additional factory — 357 — buildings and thus expanded tbe plant. It was also admitted on tbe trial tbat at tbe time of the taking vacant land could be bought immediately north of the plaintiffs’ buildings for $1,100 to $1,200 per acre. Mr. F. L. Mitchell, being called as a witness for the plaintiffs, testified that in his opinion the plaintiffs’ plant was worth $500,000 before the taking of the strip in question and $350,000 to $315,000 immediately after the taking, and that opportunity for expansion had much to do with the value. Upon cross-examination Mr. Mitchell was asked the following question in several different forms and upon objection the evidence was excluded: “Q. Now,. I desire to ask you whether the fact that to the north and south and east there were other available lands purchasable at approximately the market value of suburban lands, say a thousand dollars, or thereabouts, an acre, would not make a material difference in the valuation that you would put upon this plant before and after the taking ?” The same question, was also raised in a different form by the refusal of the court to give to the jury the following instructions which were requested by the defendant: “3. While you may not take into consideration the price, or the opportunity of acquiring adjoining land for any contemplated extension of the plant, in mitigation of damages, you may consider the same as bearing upon the market value of the plant; that is to say, the existing opportunity of acquiring land for additional buildings and for piling and storing lumber and other material may be considered by you, applying the evidence of such opportunity and of the cost of such additional land solely to the question of the decrease in the market or salable value of the remainder of the plant, and to aid you in weighing the opinion testimony of witnesses as to the lessening of the market value of the part not taken, by the taking of the strip.” “8. You may consider the expansion and enlargement of the plant since the taking and the manner in which the same has been accomplished as evidence of the capacity for such — 358 — enlargement immediately after tbe taking, and tbe availability of particular portions of tbe tract for improvements incidental to sucb expansion, as bearing upon tbe question of tbe lessened value of tbe part not taken caused by tbe taking of tbe strip in question and tbe opinions of witnesses given thereon.” “12. In determining tbe diminution, if any, in market value of tbe property not taken by tbe taking of tbe strip, if you determine tbat any diminution in value was occasioned by lack of opportunity for expansion of tbe plant, you may consider tbe market value of adjacent lands and tbe amount thereof suitable for tbe uses of tbe plaintiffs and tbe amount thereof obtainable by tbe plaintiffs as an element in determining tbe amount of sucb diminution of market value and as bearing upon tbe weight to be given to tbe opinion of witnesses as to tbe diminution of tbe market value of tbe property not taken.” Tbe instructions given by tbe court touching this question were as follows: “In tbe examination of certain of tbe witnesses questions were propounded which included reference to parcels of real estate lying outside of tbe lands owned and occupied by tbe plaintiffs March 3, 1906. In reaching your determination in this case you will not consider tbe availability, if any, of lands outside of tbe lands in question owned by the plaintiffs March 3, 1906, or tbat sucb outside land might have been acquired by tbe plaintiffs, or tbat they have since acquired any sucb lands. Sucb matters may not be shown or considered in this case for tbe purpose of reducing tbe compensation to which tbe plaintiffs are entitled. Tbe owners were not required to move part of tbe plant to other lands for tbe accommodation of tbe defendant railroad company. Tbe compensation to which tbe owners are entitled is to be based upon tbe conditions as they are proven to have existed March 3, 1906, before tbe taking of tbe strip, and after tbe taking of tbe strip. Tbe evidence offered and received in this ease as to tbe then market value of land in tbe immediate vicinity of tbe tract owned by tbe plaintiffs may be considered by you in determining the value of tbe parcel taken by tbe railroad company, and tbe damage, if any, to tbe remain — 359 — der of tbe land of wbicb sncb tract taken formed a part on tbe 3d day of March, 1906, and in considering tbe weight and value to be given by yon to tbe opinions expressed by tbe several witnesses.” All of these rulings raise tbe same question, namely, whether tbe admitted fact that other adjoining land was readily purchasable upon wbicb tbe plant could be enlarged was a proper fact to be considered by tbe jury in estimating tbe damage to plaintiffs’ property, in view of tbe testimony to tbe -effect that lack of opportunity for expansion bad much to do with tbe estimates of value of such property. As an original proposition we should find it very difficult, if not impossible, to sustain tbe rulings of tbe trial court. If, as tbe witnesses testified, tbe damages would be enhanced because opportunity for expansion of tbe works was impaired or destroyed by tbe taking of tbe strip, it would seem logically to follow that tbe fact that tbe opportunity for expansion still existed by tbe expenditure of a comparatively insignificant sum of money would have a vital bearing on the question of tbe amount of tbe damage^ i. e. reduction in market value suffered by tbe remainder of tbe plant. It seems, however, that we cannot approach tbe proposition upon first principles. A very similar questiqn was presented to tbe court and considered upon the first appeal, and whatever legal propositions were laid down upon that appeal form tbe law of tbe case upon all future trials or appeals, whether those propositions be right or wrong. Upon tbe first trial tbe subject was approached from a somewhat different standpoint. Tbe taking of tbe strip encroached upon tbe east side of tbe circular testing track, making it necessary to shorten tbe track somewhat and increase tbe sharpness of tbe curves, and tbe defendant procured from tbe owner of land on tbe west an option for tbe purchase of a strip of land equal in size to tbe strip taken for a moderate price, wbicb would enable tbe plaintiffs to duplicate their previous testing track. This op — 360 — tion tbe railroad company tendered to tbe plaintiff witb an assignment thereof and offered to prove these facts upon tbe trial. Upon objection tbe offer was rejected, and this ruling was one of tbe errors claimed upon tbe former appeal. In treating tbe question this court then said: “Tbe obvious purpose of this offer was in mitigation of damages. Tbe fact that other lands in tbe immediate vicinity could be purchased from a third party at a moderate price, to which plaintiff should shift bis business, could not be shown to. reduce tbe damages to which plaintiff was entitled. It is not material that be could move part of bis plant to other land for tbe purpose of giving tbe appellant a right of way, and thus, in effect, swap land for tbe accommodation of appellant. . . . Tbe only relevancy such an offer could have, if admissible for any purpose, would be as tending to prove tbe value of land in tbe immediate vicinity of plaintiff’s plant on tbe question of value of tbe land taken and damages to other land.” [138 Wis. 14.] It is true that some further reasons are given in tbe opinion as additional grounds for tbe bolding that tbe offer of proof was properly rejected, but tbe ruling is squarely rested upon tbe legal proposition above quoted as well as upon tbe other subsidiary grounds, and that proposition must necessarily be considered as settled in this case. That proposition is that tbe fact that other lands could be purchased in tbe immediate vicinity to which tbe plaintiff might shift bis business could not be shown to reduce tbe damages, but might probably be shown on tbe question of tbe value of tbe land taken and damages to other land. If this be tbe correct meaning of tbe former opinion, then it is quite apparent that tbe court’s rulings on tbe second trial were in accord witb tbe principles there laid down, which principles are tbe law of tbe case. In charging tbe jury tbe trial court told them plainly that they were not to consider tbe availability of lands outside of the lands owned by tbe plaintiffs at tbe time of tbe taking, for — 361 — the plaintiffs were not. required to move any part of their plant to other lands for the accommodation of the defendant and their compensation must be based upon the conditions existing at the time of the taking; but that evidence of the value •of adjacent lands might be considered in determining the value of the parcel taken and the damage to the land not taken. We are not to be understood as approving of these propositions as independent legal principles, but simply as holding that the rulings are in substantial accord with the rules laid down by this court in the former opinion and which are conclusive so far as this case is concerned. The foregoing question is the question which was mainly discussed upon this appeal, but there are some other questions raised which will be briefly considered. It is said that the witnesses who testified as to the value of the plant before and after the strip of land was taken did not qualify themselves to testify as experts. It is true that a number of them were witnesses who lived in Racine and they did not claim to have knowledge of the value of land as land in that vicinity. If the question at issue had been the mere question of the value of land which had no value except for residence or farming purposes, they clearly would not have been qualified witnesses. But this was not the question. There was practically no dispute on the question of the value of the strip as mere land. The plaintiff fixed its value at about $1,100 per acre and no one disputed him. The question was as to the value of the strip as part of the manufacturing plant conducted by the plaintiff, and this was the question upon which these witnesses testified. They showed themselves to be experts in the manufacturing business and well acquainted, from long years of experience, with the values and needs of plants of this kind. It also appeared that they knew, by examination of the property at or very soon after the time when the land was taken, what its situation, — 362 — condition, and general adaptability to tbe plaintiff’s business was. This knowledge, we think, qualified them to testify as experts on the question of the value of the manufacturing property before and after the strip was taken, especially in view of the fact that there was no serious controversy as to the value of the land taken considered merely as land not connected with any industry. George Yule was called as an expert witness for the plaintiff on value. He testified that the value of the plaintiff’s plant before the taking of the strip was $600,000 and after the taking was $425,000. lie further testified that in considering the reduction in market value which would accrue to the part of the plant left on the east of the track he considered the fact of its not being able to extend. Being asked as to the market value of the strip taken, he stated that it was $50,000, and upon cross-examination that he considered as elements which went to make up this value “the matter of extension of the plant and the growth of the business” and. the difficulty and expense of proper supervision in case the plant was extended across the tracks, making two separate plants. The defendant then moved to strike out Mr. Yule’s testimony as to the value of the'strip on the ground that he manifestly included in his estimate of value damages to the entire tract and thus duplicated damages, but the motion was denied. It may be possible that, under the rules laid down in the former opinion as to the duplication of the elements of damage, the defendant’s motion should have been granted, but we do not find it necessary to decide this question. Even should this be admitted, it does not seem to us that any substantial prejudice resulted from the denial of the motion. Seven disinterested witnesses testified in the case as to the damage to the property by the taking of this strip for railroad purposes, and all but one had placed the damage at somewhere from $150,000 to $200,000, while the remaining witness had — 363 — placed it at $125,000 to $150,000. Tbe idea that the striking out of the testimony of one of these witnesses as to the value of the part taken would make any substantial difference in the result of the jury’s deliberations seems in the highest degree improbable. "We therefore conclude that if there was error in the ruling it was nonprejudicial. The court charged the jury in reference to the value of the strip taken as follows: “In estimating and determining the fair market value of the strip or parcel of land taken by the railroad company you will consider the fact that said strip of land was part and parcel of and used in conneciion with the tract and premises of the plaintiffs, described in the evidence, and you will not view the parcel taken as an isolated or separate parcel of land. You will further consider any and all -evidence relating to the situation of said strip, its general location with reference to the remainder of said plaintiffs’ premises, its surround ings, the use to which it was, in whole or in part, devoted, its availability and adaptability for valuable uses, its natural ad-. vantages, if any, arising out of its location and situation, the uses to which it was or was intended by the owners in the immediate future to be applied, and all the other evidence,, facts, and circumstances introduced and appearing upon the trial which will aid you in arriving at a just determination of said value.” The appellant contends that this instruction allows the jury to duplicate damages and is in direct violation of the law laid down in the opinion of the court upon the former appeal. At first blush the contention seems to have weight, but we think that when the former opinion is carefully studied in connection with the peculiar questions which arose in that case it will be found that there has been no departure from the established law either in that opinion or in the charge now objected to. Upon the first trial the case was submitted to the jury upon two special questions, instead of upon a general verdict as was done upon the second trial. The first of these questions — 364 — asked what was the market value of the strip taken considered as a part of plaintiffs entire tract as used in his business; and the second asked in whát amount was the fair market value of the remainder depreciated by the taking of the strip. It was considered that as these questions were framed they necessarily involved and demanded of the jury answers duplicating in some degree the damages. It was said in substance that the value of the strip as a part of the premises used in the plaintiff’s business must include deterioration in whole or in part of the remainder of the plant, and hence the same element was included in both questions and the sum of the answers must duplicate some part of the damages. It was clearly not intended to overrule or change the law governing the elements of damage in condemnation cases, for the ■cases which amply justify the charge of the trial court which is now attacked are cited upon page II of the opinion on the former appeal. Really the only point decided was that the form of the questions rendered duplication of damages inevitable, although some language in the opinion may seem to justify the idea that the decision goes further. Since a very early day in this state it has- been very well settled that in awarding damages for the taking of lands for railroad or highway purposes the strip taken is to be valued as part and parcel of the entire tract of which it formed a part; that the landowner is entitled to recover the difference between the fair market value of the whole property before the taking and the value of what remains after the taking; that the actual use and intention of the proprietor is to be considered as well as the adaptability of the property for some use in the future. Welch v. M. & St. P. R. Co. 27 Wis. 108; Driver v. W. U. R. Co. 32 Wis. 569; Watson v. M. & M. R. Co. 51 Wis. 332, 15 N. W. 468; Meinzer v. Racine, 74 Wis. 166, 42 N. W. 230; Washburn v. M. & L. W. R. Co. 59 Wis. 364, 375, 18 N. W. 328; Alexian Brothers v. Oshkosh, 95 Wis. 221, 70 N. W. 162; American States S. Co. v. M. N. R. Co. 139 Wis. 199, 120 N. W. 844. — 365 — These cases, except the last, were in mind when the former opinion was written, as is demonstrated by the fact that a number of them were cited in the opinion, and had there been any intention of departing from them that intention would have been clearly expressed. It is evident that the charge of the court now attacked was in substantial conformity with the law as settled in numerous decisions, and that law, not having been disturbed by the opinion on the previous appeal, is controlling here and entirely justifies the charge. It is claimed that the damages are excessive. .Were this the first verdict we should feel some hesitancy in sustaining it, but there have now been two verdicts of substantially the same amount in this case by juries whose fairness is in no way impeached. There was ample evidence upon both trials -justifying the finding of the large amounts which the two juries have found. We see no reasonable probability that another trial would result differently, nor do we feel that there is any amount which the court can say that the jury should have found rather than the one which they actually did find. By the Gowd. — Judgment affirmed.