#### City of Menasha, Respondent, vs. Wisconsin Traction, Light, Heat & Power Company, Appellant.

*November 18*

December *7, 1915.*

*Public utilities: Taking of plant by municipality: Action to determine necessity: Judgment: Appeal.*

1. In tlie action, provided for in sec. 1797m' — 80, Stats. 1913, to obtain an adjudication as to the necessity of the taking by a municipality of the existing plant of a public utility, no judgment is provided for or contemplated, and no appeal lies from the verdict of the jury or the finding of the court; nor, if a judgment be in fact entered, can an appeal be taken therefrom.

:2. Where there is jurisdiction in the trial court, sec. 2836a, Stats. 1915 (ch. 219, Laws 1915), is limited to curing defects in an appeal only in a matter, action, or proceeding in which an appeal is authorized by statute.

*606"Appeal from a judgment of tbe circuit court for Winnebago county: ByeoN B. Paee, Judge.

*Dismissed.*

Tbe city of *Menasha*pursuant to sec. 1797m — 80, Stats.. 1913, brought an action in tbe circuit court to determine tím necessity of taking tbe public utility plant of tbe defendant located in tbe plaintiff city. Tbe jury found that public necessity existed for its taking and tbe court entered a judgment in accordance with tbe verdict, from which judgment tbe defendant appealed.

For tbe appellant there were briefs by *Van Dylce, Shaw,. Musical & Van Dylce,*and oral argument by *James D. Shaw.*

For tbe respondent there was a brief by *D. K. Allen,*attorney, and *Silas Bullard*and *John G. Thompson,*of counsel, and oral argument by *Mr. Allen*and *Mr. Thompson.*

Vinje, J.

Plaintiff maintains that an appeal does not' lie from tbe judgment or tbe finding of tbe jury. Sec. 1797m — 80, Stats., provides that if a municipality shall, according to law, have determined to acquire an existing plant of a public utility, it shall bring an action in tbe circuit court praying tbe court for an adjudication as to tbe necessity of" taking. Summons, complaint, and answer shall be served,, and tbe action shall stand for trial and be tried to a jury unless waived. Tbe language of this section standing alone' seems to contemplate an action that shall proceed to judgment. But taken in connection with tbe next section and tbe whole scheme of condemnation it seems quite clear that tbe legislature intended tbe proceeding in court to stop with-tbe verdict, or, in case of a trial by tbe court, with its finding. Sec. 1797m — 81 provides that if tbe jury shall have found' that a necessity exists for tbe taking of a plant, then tbe municipality shall give speedy notice of such verdict of a jury to-tbe public utility and to tbe commission, and tbe following sections require tbe commission to proceed to determine tbe compensation. Tbe statute nowhere mentions a judgment. If one were to be entered tbe verdict would be merged in tbe. *607judgment, and notice of tbe latter would be required and not of tbe verdict. Tbougb tbe statute does not in terms so provide, it is obvious from its scheme that if tbe question of necessity is tried by tbe court notice of its finding thereon must be given in tbe same manner as. of a verdict. Tbe entry of a judgment upon tbe verdict in this case is an irregularity that does not affect tbe validity of tbe finding.

An appeal does not lie from a mere verdict of a jury or a finding of fact by tbe court and so sec. 3047 does not apply. But, irrespective of this, tbe verdict of tbe jury ip but one step in tbe condemnation proceeding. There must be a vote on tbe question by tbe municipality, a finding of necessity by a jury or tbe court, and compensation fixed by tbe commission before tbe proceeding terminates. As pointed out in *Clancy v. Fire & P.*Comm'rs, 150 Wis. 630, 633, 138 N. W. 109, tbe absence of any provision for an appeal is quite significant, because in somewhat cognate statutes, there referred to, tbe legislature has specifically provided for an appeal. Tbe right of appeal being purely statutory; none having been expressly given, and tbe whole legislative scheme of condemnation apparently negativing tbe idea that tbe proceeding should bait at an intermediate step for tbe purpose of an appeal, it must be held that none was intended. Cb. 219, Laws 1915, to which our attention is called by defendant, does not touch tbe question. Where there is jurisdiction in tbe trial court, as there was here, that section is limited to curing defects in an appeal only in a matter, action, or proceeding in which an appeal is authorized by statute. It does not grant .an appeal where none is given.

*By the Court*— Appeal dismissed.