
    The Milwaukee & Lake Winnebago Railroad Company, Respondent, vs. Stolze and another, Appellants.
    
      October 12
    
    November 1, 1898.
    
    
      Railroads: Condemnation proceedings: Right to discontinue.
    
    The right of the party instituting proceedings for the condemnation of land to dismiss the same before the final award is not absolute, but the circuit court may in its discretion grant such dismissal upon such conditions as to prevent injustice. The provision of sec. 1848, R. S. 1878, that the commissioners shall proceed to perform their duties upon written demand of either party, and shall file their report within a certain time, is not to be so construed as to prevent such dismissal.
    Appeal from an order of the circuit court for Manitowoc county: N. S. GilsoN, Circuit Judge.
    
      Affirmed.
    
    Condemnation proceedings. In October, 1896, the respondent commenced condemnation proceedings for the purpose of taking a number of acres of land owned by the appellants for switching and storage yards. In November, 1896, the petition was heard, condemnation was ordered, and commissioners appointed. Nothing was done by the commissioners until December, 1897, when the appellants demanded that the commissioners perform their duties, and in pursuance of such demand the commissioner commenced taking testimony January 7,1898, and took testimony for several days. February 2, 1898, the railroad company served notice on the commissioners and the landowners discontinuing the proceedings. Nevertheless, the appellants demanded that the commissioners go on with the proceedings, and on the 8th of February the commissioners took further testimony. On the 10th of February the respondent obtained an order to show cause, returnable on the following day, why the proceedings should not be dismissed, which order contained a clause staying all proceedings until the hearing of tbe motion. This order was served on tbe lOtb, but, notwithstanding tbe stay, tbe commissioners, later on tbe same day, filed their report and award. Tbe motion to dismiss was opposed by tbe appellants by an affidavit showing,, among other things, that they bad been put to expense in defending the proceedings, but not showing tbe amount of such expense. Tbe court took tbe motion under advisement until June 2, 1898, when an order was made dismissing the proceedings, and requiring tbe railroad company to pay tbe commissioners’ fees up to tbe time of tbe notice of discontinuance. From this order tbe defendants appeal.
    For tbe appellants there was a brief signed by Twnlm & GUóhmum, and oral argument by W. R. Timlm,.
    
    
      Thos. R. Gill, for tbe respondent.
   WiNsnow, J.

Tbe question in this case is whether condemnation proceedings instituted by a railway corporation can be discontinued prior to tbe filing of the award and against tbe objection of tbe landowner. It was said in Morris v. W M. R. Co. 82 Wis. 541, that tbe railway company bad a right to discontinue condemnation proceedings, and Driver v. W. U. R. Co. 32 Wis. 569, and Lewis, Em. Dom. §§ 655, 656, were cited as sustaining tbe proposition. In that case tbe discontinuance was prior to tbe appointment of commissioners, and so, perhaps, it is not direct authority in tbe present case, where the attempted discontinuance was just prior to the filing of tbe award of tbe commissioners. It is generally held, however, that this fact makes no difference, and that, in tbe absence of express statutory provisions, tbe party instituting condemnation proceedings may, with tbe consent of tbe court, dismiss or discontinue tbe proceedings at any time prior to tbe filing of tbe award, or tbe confirmation of tbe award where confirmation is necessary. Lewis, Em. Dom. § 655;- 3 Elliott, R. R. § 1033. Tbe contention, however, is made that, because it is provided in R. S. 1878, sec. 1848, that the commissioners shall proceed to perform their duties upon written demand of either party, and shall file their report within a certain time, therefore there is no power on the part of the railway company to stop the proceedings, but that they must proceed to a finish under the mandatory terms of the statute. This view, if logically carried out, would seem to deprive even the court of any power to arrest the proceedings of the commissioners upon any showing. Such a construction of the statute would be unreasonable. The statute was carefully framed so as to pi’ovide that the proceedings should not be delayed, but should be brought to a speedy conclusion, in the interest of both parties, for very obvious reasons; but that these safeguards against delay should be construed as taking the proceedings absolutely out of control of the court we cannot admit. 'The ordinary principle is that the moving party in actions or proceedings may, with the consent of the court, dismiss or discontinue the same at any time before the result sought for in the proceedings has been reached and the rights of the parties fixed, and no reason is perceived why this principle should not apply here. Certainly, if the proceedings cannot be stopped prior to the award, it would seem that they can never be stopped at all, because the statutory provisions as to the effect of the award upon the rights of the parties (E. S. 1878, sec. 1850) seem to preclude the idea of there being any stopping place after the filing of the award. As said in Uniacke v. C., M. & St. P. R. Co. 67 Wis. 108: “It will-be difficult to find in our statute a loous pomitentice after the award is filed, when the owner may have execution for the sum awarded if it remains unpaid for sixty days after such filing.” See, also, West v. M., L. S. & W. R. Co. 56 Wis. 318. The true principle would seem to be that the question whether the railway company should be allowed to discontinue its proceedings prior to the award is an administrative question, which must be settled by the circuit court, in the exercise of a sound discretion. The right to dismiss is not absolute in the moving party, but a dismissal may be granted by the court, in its discretion, under such conditions as may be necessary to prevent injustice. In re Waverly Waterworks Co. 85 N. Y. 478. We cannot say there has been any abuse of discretion in the order of dismissal in the present case.

By the Oowrt.— Order affirmed.  