#### Spies, Appellant, vs. Chicago & Milwaukee Electric Railroad Company, Respondent.

*December 7, 1911*

January *9, 1912.*

*Railroads: Condemnation of land,: Appeal from award,: Payment into-court: Trial*de novo: *Verdict reducing amount: Judgment: "Waiver.*

1. Upon an appeal, under sec. 1849, Stats. (1898), from the award of commissioners in condemnation proceedings, the trial in the circuit court is a trial *de novo*to determine the landowner’s damages, without reference to the amount awarded hy the commissioners; the verdict supersedes the award; and judgment is to he rendered according to the rights of the parties, without considering which one took the appeal.

*362. Thus, where the landowner appealed from the award hut withdrew the amount thereof, which the railway company had paid into court, and upon the trial the verdict was for a smaller sum, the railway company, although it had not appealed, was entitled to judgment against him for the difference between the award and the verdict and for the costs of the trial.

8. The railway company does not in such a case, by failing to appeal, waive its right to insist that the verdict of the jury establishes the amount which it should be called upon to pay. *Grand Rapids v. Bogoger,*141 Wis. 530, distinguished; *Groth v. M. N. R. Go.*143 Wis. 537, limited.

Appeal from a judgment of the circuit court for Milwaukee county: LaweeNCE W. Halsey, Circuit Judge.

*Affirmed.*

For the appellant there was a brief by *Henry J. Killilea*and *Rodger M. Trump,*and oral argument by *Mr. Trump.*

*Edgar L. Wood,*for the respondent.

Barnes, J.

The defendant instituted condemnation proceedings to acquire title to certain parcels of land owned by plaintiff. The commissioners awarded damages in the sum of $1,200, which amount the defendant paid into court and entered into possession of the premises. The award was filed June 21, 1907. Plaintiff appealed therefrom July 18, 1907, and on September 16, 1907, withdrew the money paid into court. Defendant did not appeal. The appeal was tried in May, 1911, and resulted in a verdict finding that the value of the land condemned was $730. Upon this verdict judgment was rendered in defendant’s favor for $470 with interest thereon and costs, aggregating in all $654.41. Plaintiff appeals from the judgment and insists that defendant, not having appealed from the award of the commissioners, was not entitled to recover back the difference between the two awards.

Sec. 1849, Stats. (1898), provides:

> “Within thirty days after the filing of the report of the commissioners in the office of the clerk of such circuit court any party may appeal to such circuit court from any award *37made by tbe commissioners by filing in tbe office of said clerk a written notice of appeal. Upon bis receiving sucb notice tbe appeal shall be considered an action pending in court, subject to a change of tbe place of trial and appeal to tbe supreme court as other actions, and shall be entered by tbe clerk upon tbe records of tbe court by setting down tbe owner or owners of tbe land for which such award was made and who are parties to tbe appeal as plaintiffs and tbe railroad corporation as defendant. Such appeal shall be tried by jury unless a trial by jury is waived by both parties; costs shall be allowed to-tbe successful party on sucb appeal, and if in favor of tbe plaintiff, be added to tbe amount of tbe verdict; if in favor of tbe defendant, be deducted therefrom; and judgment shall be rendered thereon according to tbe rights of the parties.”

Primarily tbe commissioners in condemnation proceedings determine tbe damage which tbe landowner sustains by reason of tbe taking of bis land. Where tbe award of tbe commissioners is brought before the circuit court on an appeal by either' party, tbe statute plainly contemplates that there shall be a trial *do novo*to finally settle tbe *quantum*of tbe landowner’s damages. Sucb damages are ascertained without any reference to tbe amount found by tbe commissioners. Tbe verdict supersedes tbe award. -There is a close analogy between tbe situation presented on an appeal from an award in condemnation proceedings and that presented on an appeal from a justice court judgment, where relief is granted according to tbe rights of tbe parties without considering which one took tbe appeal. Tbe situation is even more closely analogous to that presented in *York v. Orton,*65 Wis. 6, 26 N. W. 166, which involved an appeal from tbe award of commissioners allowing a claim against tbe estate of a decedent. Tbe administrator appealed and tbe amount of tbe allowance was increased on tbe trial in tbe circuit court, and this court held that the award of tbe commissioners bad nothing to do with tbe judgment to be entered in tbe circuit court, although tbe claimant did not appeal. Tbe distinction that might be *38drawn between, tbe two cases is too subtle to warrant a departure from tbe *York Case.*

Tbe verdict established appellant’s damages at $730. No complaint is made that tbe finding is not amply supported by tbe testimony. Sec. 1849, supra, requires tbe court to enter judgment on tbe verdict in accordance with tbe rights of tbe parties. Any judgment that permitted tbe appellant to recover or retain a larger amount of damages than $730 would not accord with tbe established rights of tbe parties. Tbe statute contemplates that such a judgment should be entered as was rendered here. Tbe respondent was clearly entitled to recover tbe costs of tbe trial in tbe circuit court. Tbe statute says that such costs shall be deducted from tbe amount of tbe verdict. Seasonably construed, this provision means that, where tbe award of tbe landowner on appeal is less than that originally made, recovery is limited to tbe amount awarded on appeal, less tbe taxable costs. Tbe amount of tbe original award having been withdrawn, it was proper for tbe court to enter an affirmative judgment for tbe difference between tbe first award and tbe second one, minus tbe costs of tbe trial in tbe circuit court. No other judgment would be in accordance with tbe rights of tbe parties. By not appealing tbe respondent waived tbe right to a bond before tbe money was withdrawn which it compulsorily deposited in court, but it did not waive tbe right to insist that tbe verdict of tbe jury established tbe amount of the' damages which it should be called upon to pay.

Tbe appellant relies principally on tbe cases of *Grand Rapids v. Bogoger,*141 Wis. 530, 124 N. W. 659, and *Groth v. M. N. R. Co.*143 Wis. 537, 128 N. W. 74. Tbe first case is not in point. There it was held that a landowner did not waive bis right to prosecute bis appeal from an award of damages on account of land condemned by tbe city by withdrawing tbe amount of tbe award from tbe city treasury. This was held because it was said that tbe city bad no right of ap*39peal, and, having no such right, was not entitled to any reduction of damages on the appeal. The statute gave the right of appeal to an aggrieved party only, and, the assessment having been made by the board of public works and confirmed by the common council, the city waived any objection to the ex-cessiveness of the award.

In reference to the second case the following language is relied on to support the claim of the appellant:

> “The idea is that, if the corporation waives its right of appeal, pays the money into court, and takes possession of-the land, the landowner has, unconditionally, the right to such money and to the remedy to increase the amount as well.”

This language must be read in connection with the facts before the court. The question involved was whether a party who had withdrawn the deposit made to satisfy the award of the commissioners waived the right to prosecute an appeal therefrom, and all the court intended to decide or did ^decide was that the landowner could withdraw the deposit and still prosecute his appeal where the railway company actually entered into the possession of the land. The judgment of the circuit court was right.

*By the Court.*— Judgment affirmed.