Brown v. County State Road & Bridge Committee

Crownhart, J. It is contended on the part of the appellants that the'title to the property was vested in the respondent as soon as the verdict of the jury was rendered, and that it may not abandon the proceedings without payment of the award, and they cite Sprague v. Northern Pac. R. Co. 122 Wis. 509, 100 N. W. 842, which was a decision under statutes identical with sub. (b), sec. 1317m — 6, Stats. While it is true that the court so held in that case, it is also true- that since that time the legislature has amended' the statutes by adding sec. 32.19, providing for abandonment of the proceedings. But it is contended by the appellants that sec. 32.19, Stats., is unconstitutional as in violation of [482] the Seventh amendment to the United States constitution, which guarantees the jury trial provided by common law. That contention is unsound because it has been held that that provision of the constitution applies only to actions at common law in the courts of the United States, and not under the laws of the states. 24 Cyc. 103. It is also contended that sec. 32.19, Stats., is contrary to the Fourteenth amendment to the constitution as depriving the appellants of their property without due process of law and in denying them the protection of the law. We have given this contention consideration, but regard it as without merit. 10 Ruling Case Law, “Eminent Domain,”-§ 199 ; 20 Corp. Jur. “Eminent Domain,” § 458. The property of the appellants was not taken, and they were not deprived of their property in any way. The statute, as we construe it, contemplates that the appellants should not be legally injured in their property rights, but that they should be made whole in their reasonable and necessary disbursements incurred in a defense of the proceedings, as a condition of abandonment. That brings us to the contention of the appellants that the order of the court appealed from was erroneous because it failed ,to allow the appellants for their actual disbursements, in-, eluding attorneys’ fees. It appears from the record that the attorneys for appellants rendered service to the appellants in the proceedings of the reasonable value of $350, for which' appellants were liable. The circuit court, however, allowed only $100 for such services. The statute provides that if the person instituting such condemnation proceedings deems it inadvisable to take the real 'estate at ‘the price fixed by the jury, it may, within sixty days after filing the award or within sixty days after assessment of damages, discontinue the proceedings “upon such terms as to the court shall seem just.” Sec. 32.19, Stats. This statute gives to the court a large discretion, but the court nevertheless must exercise a judicial discretion and not arbitrarily deny just compensa [483] tion. It is very evident the statute intends to deal fairly with the landowner and to make him whole as a condition of dismissal of the proceedings. It would be very unjust to impose large expense upon the landowner and then dismiss the proceedings without recompense for his actual and reasonable disbursements. The evidence before the circuit court was undisputed. The attorneys had rendered services to the extent of seven days in court and four days in preparation — eleven' days in all. It is presumed that the attorneys were competent, and we will take judicial notice that the senior member, Mr. F. M. White, is an able attorney of large experience, he having appeared before this court many times and this court having appointed him on the board of bar examiners. In the absence of any testimony to the contrary, we will assume that their services were worth the amount claimed. The amount claimed would seem to be a modest fee. The court should therefore haye allowed, in its order dismissing the proceedings, a reasonable sum for attorneys’ fees as would leave the landowners in their property rights as they were before the commencement of the proceedings. It was suggested on the hearing that the trial court apportioned the attorneys’ fees for the reason that the appellants, as well as the respondent, took an appeal to the circuit court. However, it was the action of the respondent that forced the applicants into the circuit court, and appellants’ appeal was a justifiable precautionary measure to protect them in any verdict that might be had in the circuit court. We do not think the respondent is justified in taking the appeal and going to trial thereon, and then seeking release from its responsibility therefor. By the Court. — The order is reversed, with directions to the circuit court to enter an order in accordance with this opinion.