
    McDonald vs. The Green Bay & Mississippi Canal Company.
    Stay op PROCEEDINGS: Security for payment of judgment forflowage of land.
    
    This action being for damages which accrued to plaintiff’s lands by flowage caused by the defendant’s works for improving Fox river, prior to September, 18753, when the United States took possession of such works, and there being an action pending against the United States by the same plaintiff for the same damages, in the same court, said court granted a stay of proceedings in this cause until such other action should be determined. Held, that this was a proper exercise of discretion, and the appeal must be dismissed; but this court intimates that, upon plaintiff’s making application therefor, the circuit court should vacate the stay unless the defendant shall give security for the payment of any judgment herein which may be obtained against it, as required by sec. 22, ch. 119 of 1872, as amended by ch. 291 of 1873.
    APPEAL from tbe Circuit Court for Fond du Lao County.
    
      This was an appeal by tbe plaintiff from an order staying proceedings in tbe cause, made at tbe July term, 1876. Tbe nature of tbe action, and the grounds upon which tbe stay was granted, will sufficiently appear from tbe opinion.
    Briefs were filed, by Taylor & Sutherland for tbe appellant, and by Sloan, Stevens <& Morris for tbe respondent; and tbe cause was argued orally by David Taylor and B. J. Stevens.
    
    For tbe appellant it was contended, among other things, that if be bad a right to recover against tbe United States damages which accrued before tbe United- States became tbe owner of tbe improvement, still be could not be compelled to seek that remedy, but might waive it and bold the defendant liable; that be considered bis claim for such damages against tbe United States a doubtful claim, and, rather than take tbe chances of a litigation upon it, preferred to pursue bis remedy against the defendant, as be clearly bad a right to do; tbfit under tbe law of congress be could recover bis claim for damages against tbe United States only in case tbe officer in charge of tbe improvement was of tbe opinion that the dam causing tbe damage was necessary to tbe improvement and could not be lowered, a matter which is of no importance in this suit against tbe company; and that tbe appellant would be entirely at the mercy of congress for an appropriation to pay bis claim, if allowed.
    For tbe respondent it was argued, at length, 1. That, under the acts of congress relating to tbe subject, tbe United States are liable for all tbe damages to which plaintiff is entitled for tbe fiowage of bis land, whether tbe same accrued before or after tbe transfer of tbe improvement to tbe United States. 2. That tbe court is deprived of jurisdiction in this case. (1.) Because an -award of damages has been made in favor of tbe plaintiff against tbe United States, in which award are merged tbe damages which tbe plaintiff seeks to recover against tbe caDal company. (2.) Because an action of trespass will not lie, but tbe plaintiff is confined to tbe statutory remedy provided by the Board of "Works Act (Laws of 1848, p. 62). (3.) Because, if not to the latter, he is at least confined to the additional or substituted remedy provided by the act of congress of 1875, and the acts of the legislature of 1874, ch. 291, and 1872, ch. 119, as amended. 3. That there was no error in staying the proceedings in this action until the final determination of the proceedings for compensation against the United States. If the remedy by a procedure under the statute for compensation is exclusive, or if a fund to secure the payment of full compensation has been provided, then clearly there is no error in granting this stay. If the damages to be recovered in this action, when paid by the company, are to be deducted from the amount of compensation payable by the United States, when ascertained, and proceedings are on foot to ascertain that amount, what good purpose can be served by proceedin g with this case to j udgment ? See Kennedy v. Bail-road Co., 22 Wis., 581.
   Cole, J.

The argument on the part of the respondent took a range which we do not deem it necessary to follow on this appeal. The question as to what may be the obligations or equities between the defendant company and the United States, growing out of the transfer of the works of the company to the United States, is not properly before us, and will not be discussed. This action is to recover the damages which the plaintiff has sustained in consequence of the flowage of his land by the defendant for six years before the commencement of the suit. It appears that, after the transfer of the improvement to the United States, the plaintiff instituted proceedings under ch. 119 of the laws of 1872, ch. 291 of the laws of 1874, and the act of congress (ch. 166) approved March 3, 1875, to obtain compensation for damages occasioned by the flowage of his lands. In his petition in that proceeding, he claims compensation for all the damages which he has sustained by reason of the flowage, as well before the United States became the owner of the improvement as subsequent thereto. The commissioners refused to assess any damages for injuries prior to September 18, 1812, that being the time when the United States took possession of the works of the company; the liability of the United States for any damage prior to that time being denied. Roth parties took an appeal from the award of the commissioners, and that cause is now pending in the circuit court for Eond du Lac county. After that appeal, and while the cause was pending in the circuit court, the defendant company applied for and obtained a stay of proceedings in this suit until the determination of the action against the United States. This appeal is from the order granting such stay. The order staying proceedings in the first instance would not seem to be an improper exercise of the discretion of the court in the matter; but it should be vacated by the court unless the defendant (if required) give security for the payment of any judgment which may hereafter be obtained against it. “ The order staying proceedings is, of course, in all cases subject to modification or vacation by the court making it, whenever,, in the exercise of a sound discretion, the same shall be deemed necessary and proper.” Dixon, C. J., in Parmalee v. Wheeler, 32 Wis., 429-434. And therefore, if the suit against the United States should be unnecessarily delayed or unreasonably defended; or if the plaintiff should fail to recover in that suit the damages claimed in this; or if the plaintiff should be unable to collect his judgment against the United States — in each case supposed, it would be the duty of the circuit court to vacate the stay, and allow the plaintiff to proceed with this action. Possibly all the objects of this suit may be obtained in the proceedings against the United States for compensation; and, if so, its further prosecution would seem unnecessary. But, as before remarked, if the plaintiff demands it as a condition to continuing the stay, the defendant should give security according to the provisions of ch. 119, supra. By the 22d section of that act, as amended by cb. 291, Laws of 1873, wben a railroad company shall not have acquired title to the lands upon wbicb its road is constructed, or if, at any time after an attempt to acquire title by purchase, appraisal or otherwise, the title acquired is found defective, the company is empowered to proceed to acquire or perfect the title; and at any stage of the proceeding, the court in which the same is pending may authorize the company to continue in possession, or to take possession during the pendency of such proceeding, and may stay all actions against the company on account thereof, upon the company’s giving security, as the court may direct, to pay the compensation when finally ascertained. Ch. 291, Laws of 1874., enacts that compensation for damages occasioned by flowage may be ascertained as provided by eh. 119; and we think section 22, as amended, is applicable to the stay in the present case. It is true, the application for the stay was addressed to the discretion of the court; but we think it would be an abuse of that discretion not to require- security in the event the plaintiff demands it. Eor he is certainly entitled to compensation, either from the defendant or the United States, for the injuries past and future which have been or may be done to his land by the maintenance of the dam. And it is no hardship to require the defendant to give security as a condition to continuing the stay.

"With this expression of our views for the guidance of the circuit court, the appeal must be dismissed.

By the Oowrt.— Appeal dismissed.

RyaN, O. J., took no part.

On a motion for a rehearing, the defendant’s counsel contended that the requirement to give security, other than upon the property of the company, in a case like this, was oppressive, the stockholders of the company being nonresidents and not personally liable beyond the value of their respective stock; that the property of the company was the only fund to wbicb tbe plaintiff could resort for payment, if tbe action were not stayed but should proceed immediately to a judgment in bis favor; and that if a sufficient amount of such property to cover any judgment that be could possibly recover herein, were set apart for bis security as a condition of staying the proceedings, this was all that could justly and reasonably be demanded; and tbe decision of this court should at least be modified to that extent. They also argued that tbe foregoing decision, in so far as it affirms tbe stay of proceedings herein, proceeds upon tbe assumption that tbe United States are under obligation to pay tbe damages here demanded; and that, if this is so, tbe act of congress of March 3, 1875, and tbe acts of the legislature of this state, cb. 291 of 1874, and cb. 119 of 1872, as amended by cb. 291 of 1873, operate to delay plaintiff in resorting to bis common-law remedy in trespass against the company until be shall have exhausted tbe remedy furnished by those acts; and therefore that defendant was legally entitled to a stay herein without terms.

Tbe motion for a rehearing was denied.  