Sherman v. Milwaukee, Lake Shore & Western Railroad
Sherman v. The Milwaukee, Lake Shore & Western Railroad Company
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Opinion of the Court
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Ryan, C. J.
This case is governed by the constitution and statutes of this state, and the settled construction of them by this court. Upon open questions in this court, we listen always with interest and often with instruction to the decisions of courts elsewhere, upon kindred questions. But when the rules of decision in this court are settled, we cannot disregard them because different rules may prevail elsewhere. There must always come a time when questions settled by the decisions of this court cease to be open here.
Under the constitution of this state, private property can not be taken for public use without just compensation first made for it. M. & M. Railroad Co. v. Eble, 3 Pin., 334 ; Norton v. Peck, 3 Wis., 714 ; Shepardson v. Railroad Co., 6 id., 605; Rollins v. Railroad Co., id., 636; Davis v. Railroad Co., 12 id., 16; Powers v. Bears, id., 214; Loop v. *650 Chamberlain, 17 id., 504, 20 id., 135; Kennedy v. Railroad, Co., 22 id., 581; Bigelow v. Railway Co., 27 id., 478; Bohlman v. G. B. & L. P. Railway Co., 30 id., 105; Bohlman v. G. B. & M. Railway Co., ante, 157. This protection, extends to an adjacent owner’s fee in a common highway, against its nse for the track of a railroad. Ford v. Railroad Co., 14 Wis., 609 ; Pomeroy v. Railroad Co., 16 id., 640 ; Hegar v. Railway Co., 26 id., 624 .
And a provision in the charter of a railroad company delegating the right of eminent domain, without providing for just compensation, as a condition precedent to the use of private property, would be void under the constitution. Shepardson v. Railroad Co., Bigelow v. Railway Co., Bohlman v. G. B. & L. P. Railway Co., supra.
It never was the law of this state that a railroad company could permanently appropriate land to its use, leaving the owner to his own proceeding to obtain just compensation for it. Norton v. Peck, Davis v. Railroad Co., Shepardson v. Railroad Co., Powers v. Bears, Loop v. Chamberlain, supra.
The learned counsel for the respondent argued that the charter óf his client authorized it to take land for its use, leaving the owner to his own remedy under it for compensation. If such were the true construction of the charter, it would obviously have been so far void. But that question is now immaterial; for, since the passage of the general railroad act of 1872, the proceedings given by that statute for the exercise of the right of eminent domain are exclusive of all special proceedings given in special charters; the latter being repealed by the former, and not revived by the amendment of ch. 292 of 1874. Moore v. Railroad Co., 34 Wis., 173 ; Bohlman v. Railway Co., ante, 157.
Corporate charters are frequently and perhaps presumably framed in the interest of the corporation. Attorney General v. Eau Claire, 37 Wis., 400 . Certain it is that the language used in many railroad charters, relating to the exercise of the *651 right of eminent domain, is doubtful and obscure; apparently tending to defer or to limit the right of the owners of land taken. Bigelow v. Railway Co., supra; Bohlman v. G. B. & M. Railway Co., ante. Such provisions seem to have been passed without critical scrutiny of the legislature. In the general act of 1872, on the contrary, the provisions for the exercise of the right of eminent domain were obviously carefully considered, are in entire accord with decisions of this court on the subject, and are eminently safe and just, both to railroad companies taking land for public use, and to the owners of lands so taken. And it will be a serious evil if the legislature should ever disturb the general and just rule of that statute, and relegate parties to the diverse and doubtful rules of particular charters. Certain it is that this has not yet been done.
Some color was given to the argument of the learned counsel by sec. 2 of ch. 175 of 1861, not expressly repealed by the general railroad act of 1872. Our first impression was that the section was inconsistent with the provisions of the general railroad act; but the construction given to the section in Bohlman v. G. B. & L. P. Railway Co., 30 Wis., 105 , limiting it to cases where railroad companies had taken possession of land by permission of the owners, makes it quite consistent with the act of 1872. That construction is still perfectly satisfactory to us. Eor it recognizes that there are two ways only by which a railroad company can lawfully enter into possession of land, not acquired by purchase: upon making just'compensation under its exercise of the right of eminent domain, or by permission of the owner. In the latter case, the owner waives compensation as a condition precedent, but not the compensation itself. He therefore assumes to himself the process of ascertaining the compensation, which would otherwise have devolved upon the railroad company. And the section in question simply enables him to do so. This purpose is very plainly expressed in sec. 4 of ch. *652 291 of 1873, amending the general railroad act of 1872; the provision in the latter section being probably intended as a substitute for the section of 1861.
Under the general railroad act, the initiative in the exercise of the right of eminent domain is clearly and exclusively put upon railroad companies; and their use of land taken is made dependent upon previous payment of the compensation ascertained by the process given.
And if a railroad company take possession of land for which it is liable to make compensation, without the consent of the owner and without having ascertained and paid the compensation under the process given by the statute, it is a trespasser and liable in an action of trespass. Davis v. Railroad Co., Ford v. Railroad Co., Pomeroy v. Railroad Co., Loop v. Chamberlain, Hegar v. Railway Co., supra; Weisbrod v. Railway Co., 18 Wis., 35 , 21 id., 602.
It is true that where a railroad company proceeds, under the appropriate process, to exercise the right of eminent domain, the remedies of that process are exclusive of all others; and the owner of laud taken under it cannot resort to a common-law action to ascertain his damages. Davis v. Railroad Co., Ford v. Railroad Co., supra; Pettibone v. Railroad Co., 14 Wis., 443 . But when a railroad does not resort to that process, the process affords it no protection; and it is liable, as the cases cited show, to action of trespass or ejectment.
There is some surplusage in the complaint in this case, in claiming for permanent damages. The trespass alleged is a continuing trespass, but the plaintiff can recover only his damages before suit brought. The complaint, however, is clearly in trespass, and not for the value of the land, as in Davis v. Railroad Co., supra.
The order of the court below, sustaining a demurrer to the complaint, must therefore be reversed.
By the Court. — Order reversed.
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