Chicago, Milwaukee & St. Paul Railway Co. v. Shepard Drainage District

■ Rosenberry, J. There are two questions argued:. (1) Does the complaint state a cause of action? (2) Are the facts set out in defendant’s answer pleadable as a counterclaim ? 1. Whether the complaint states a cause of action or not depends upon whether it is an action to recover “damages” under sec. 1379 — 18, Stats., or whether it is for compensation under sec. 1379 — 29. The case of Chicago, M. & St. P. R. Co. v. Lemonweir River D. Dist. 135 Wis. 228, 115 N. W. 825, is said to determine this question adversely to plaintiff herein. ' In that case certain damages were awarded to the railroad company on account of injuries to its right of way. On motion of the railroad company the report was modified by the court, so that instead of determining the damages to the railroad company’s right of way the determination thereof was postponed to a future date and an attempt was made to bind the drainage district for the expenses of structural changes in the railroad bridges and culverts then or thereafter made necessary by the construction of the drainage system. This court held: “This stipulation and this portion of the report and order of confirmation were unauthorized by statute, contrary to the spirit and intent of the drainage law, and of no legal force whether embodied in the final order or not. ... If it could be held that this provision of the order had any force, or legal validity, any owner of land to be affected by the improvement in the drainage district could so procure the postponement of the ascertainment of his damages until after the improvement was completed and thus defeat the whole scheme of the drainage act and the express provisions of the statute. All damages allowed to the owners of property shall be paid or tendered before the commissioners shall be authorized to enter upon the lands for the construction of any work proposed thereon.” 135 Wis. 236. [389] It will be noted that in the above case the compensation was for permanent changes in the right of way of the railway company which were absolutely necessary and without which the drainage scheme could not be completed. In the instant case the defendant might or might not, as it saw fit, require the plaintiff company to open its bridges for the passage of its dredge. It produced no change in the right of way and roadbed of the plaintiff company necessary to the maintenance and construction of the canal. In view of the expense the defendant might have decided to construct its canal through the right of way or roadbed of the defendant in some other way. We think the present action is one for work and labor performed and materials furnished in the course of the construction of the canal and in compliance'with the provisions of sec. 1379 — 29, Stats., and not for damages caused by the proposed drainage scheme, and that the complaint therefore states a cause of action. Defendant contends that the complaint is defective in that it fails to show that the amount claimed was included in the cost of construction, or that, if so included, the assessment for benefits would be still equal to or greater than the assessment for cost of construction. We do not consider this point well taken. Whether or not the defendant can be compelled to pay the judgment, should one be rendered, is a matter which cannot be determined at this time. 2. Are the facts set out in defendant’s answer pleadable as a counterclaim? The order appealed from sustains the demurrer as a demurrer to plaintiff’s complaint and makes no reference to the demurrer to the counterclaim. Therefore the second proposition is not before us and cannot be decided here. By the Gouri. — The order appealed from is reversed, and .the cause remanded for further proceedings according to law.