#### Peters, Appellant, vs. Chicago & Northwestern Railway Company and another, imp., Respondents.

*April 26*

May *15, 1917.*

*Railroads: Construction in street: Consent Toy abutting owner: Remedies: Action for trespass: Contract: Pleading: Amendment: Condemnation proceeding.*

1. The construction of a railroad in front of plaintiff's land hut on the farther half of the street and not taking any of his property — which, it is *held,*is the situation shown by the complaint in this case — was authorized by sub. (5), sec. 1828, Stats:, and was not a trespass upon plaintiff’s land, but entitled him, under sec. 1296a, to compensation for any consequential damages suffered through impairment of his rights appurtenant to the property.

2. Consent by a landowner to such occupancy of the street by a railroad company, subject to his right to compensation, is a waiver of the right to sue for damages and to restrain the continuance of such occupancy, and his only remedy is by condemnation proceedings under sec. 1852, Stats.

3. A complaint alleging that plaintiff desisted from protesting against construction of the track upon being assured that he would be compensatedj for the taking of the street and any damage sustained by him, did not set forth a cause of action on express contract where the purpose of the action clearly was to recover damages and, in effect, to compel a removal of the track.

4. Plaintiff in such case, having made no further protest until after the track was completed and trains were running thereon, in effect consented to the occupancy of the street and, by force of the statute, there arose an implied contract on the part of the railroad company to pay to him his legal damages, to be determined in condemnation proceedings; and there is no foundation for an action as for trespass or to abate a nuisance.

5. A demurrer to the complaint in such case was properly sustained; but under sec. 28366, Stats. 1913, the action need not be dismissed but may, by amendment, be turned into a proceeding for condemnation.

Appeai, from an order of the circnit court for Waukesha county: Maetin L. Lueok, Circuit Judge.

*Affirmed.*

The appeal is from an order sustaining a general demurrer to plaintiff’s complaint.

*530This, in substance, is tbe complaint so far as necessary for understanding tbe claimed infirmities thereof:

Since before tbe acts complained of, plaintiff owned and occupied as bis residence lot 1 of Riverview addition to tbe city of Waubesba, Wisconsin, wbicb fronted upon White Rock avenue and Harrison street in said city. About September 4, 1900, by ordinance, tbe city council of sucb city, in form, granted to defendant *Chicago & Northwestern Railway Company*tbe right'to construct its tracks in said city across Main street, near tbe intersection of tbe northerly line of Wisconsin Central avenue, as shown by tbe plat of tbe Wau-kesha.Land *&*Improvement Company’s addition, in and along and near tbe northerly line of said avenue, and in and along and near tbe southerly line of Harrison street, across White Rock avenue, tbe unnamed street in block B of Cook’s addition, and across Locust street between block B of Cook’s addition and G-authe’s addition. Later said company conveyed sucb privilege to tbe Minneapolis, *St. Paul & Sault Ste. Marie Railway Company*under sucb conditions as to secure to tbe two companies a joint interest in tbe railway tracks when constructed. Later, in September, 1915, without first acquiring tbe property rights of plaintiff affected by tbe construction of said tracks, tbe second named company commenced sucb construction on Harrison street and across White Rock avenue, in tbe immediate vicinity of plaintiff’s premises. He did not consent thereto or know, until tbe tracks were laid, what work was being done. As soon as be bad sucb knowledge, be protested to tbe officers and agents of tbe railway company in charge of tbe matter to tbe further continuance of tbe construction work and laying of tracks and was then assured that tbe companies would pay him compensation for taking said street and any damages thereby sustained by him, and, relying thereon, be ceased to protest until after operation of cars on tbe tracks commenced. He then demanded compensation for taking and interference with bis property, wbicb was re*531fused. -The operation of trains of ears on said tracks obstructs tbe street and deprives plaintiff of proper access to bis property and otherwise injures such property, in violation of sec. 129 6a, Stats. -Since the construction of such tracks, said companies have been trespassing upon plaintiff’s property and maintaining a nuisance in respect to the same. As a result thereof, such property has been lessened in value and made unsuitable for residence purposes. The wrong is a continuing one to his damage in the sum of $2,000.

Plaintiff asked for relief by way of an injunction to prevent further damages to his property and for compensation for damages already caused, with costs.

Eor the appellant there was a brief by *C. E. Armin*of Wau-kesha and *Glicksman, Gold & Corrigan*of Milwaukee, attorneys, and *Arthur J. Pellette*of Milwaukee, of counsel, and oral argument by *Mr. Pellette.*

*B. N. Van Doren*of Milwaukee, for the respondent *Chicago & Northwestern Railway Company.*

Eor the respondent Minneapolis, *St. Paid & Sault Ste. Marie Railway Company*the cause was submitted on the brief of *W. A. Hayes*of Milwaukee.

Marshall, J.

The respondents had authority to construct their track and maintain and use the same on the street upon which, plaintiff’s property abutted, and “in the immediate vicinity” of such property, under sub. (5), sec. 1828, Stats., subject to see. 1836, Stats., conditioned upon rendering to him just compensation as to any of such property taken and, in addition, such compensation for any consequential damage suffered by him by reason of any impairment of his rights appurtenant to such property secured to him by see. 1296a-, Stats. No ordinance of the city of Wau-kesha could authorize more so as to impair such right.

Appellant claims the complaint states a cause of action for redress for a wrong committed by respondents in having *532trespassed upon his property and to restrain them from continuing to trespass thereon; but it seems that the pleading does not show, expressly or inferentially, that he is the owner or in possession of the land in the street, on which the tracks exist. Without such ownership or possession, there could be no trespass upon his property, though there might be a violation of his right appurtenant thereto. The complaint seems to expressly negative any such ownership or possession by the language charging that the *“Minneapolis, St. Paul & Sault Ste. Marie Railway Company*did commence, and actually construct, railroad tracks in and along . . . Harrison street and across White Rock avenue, and in the immediate vicinity of the premises owned by this plaintiff, and which said premises do front and abut on White Rock avenue and Harrison street.”

Giving to the quoted language the most liberal construction which it will reasonably bear, in view of other language of the pleading to the effect that respondents’ acts were in violation of appellant’s rights under sec. 129 *Ga*entitling him to an unobstructed street for its full width in front of his property, the charge is that respondents constructed their track in front of appellant’s property on the far half of the street. Such an occupancy did not take any of his property. It merely interfered with a right incident to the ownership on his side of the street up to the center line thereof; an interference resulting in consequential damages only, which, the railroad being a lawful structure, would be *damnum absque injuria*if it were not for the statutory right to recover therefor conferred by sec. 1296a, Stats. The subject is fully covered in *Kuhl v. C. & N. W. R. Co.*101 Wis. 42, 77 N. W. 155. This seems to be a mere action to restrain the further infliction of consequential damages to plaintiff and to recover such damages already inflicted.

While we have thus briefly discussed the question of whether the wrong to appellant disclosed by the pleading is *533a trespass by a taking of property owned by him, or a mere invasion of a right appurtenant thereto which is remediable, because the wrong was denominated a trespass in the complaint, and counsel on both sides gave much attention to the matter as if it were of vital consequence, it is immaterial, since, in either case, this action would lie if appellant did not waive the remedy invoked 'by consenting to respondents’ occupancy of the street subject to his right to compensation. If he did, then the remedy therefor is by condemnation proceedings under sec. 1852, Stats. *Frey v. D., S. & A. R. Co.*91 Wis. 309, 64 N. W. 1038; *Kuhl v. C. & N. W. R. Co.*101 Wis. 42, 77 N. W. 155; *Cronin v. Janesville T. Co.*163 Wis. 436, 158 N. W. 254.

It is suggested that the complaint sets forth a cause of action on express contract, in that it is alleged that appellant desisted from protesting against construction of the track upon being assured that he would be “compensated for the taking of such street and any damages sustained” by him. But it is quite clear that the action was not .to recover on such a contract. Oompensation of that sort would involve an acquirement of the right to the interference with plaintiff’s property or right appurtenant thereto, while the purpose sought here is to recover past damages and prevent further damages by compelling respondents to desist from maintaining the track. If there were such a contract, as the one alleged, appellant repudiated it by prosecuting this action, in effect, for a removal of the track. It seems that the allegation as to compensation and appellant desisting from protesting upon assurance thereof, was inserted to indicate that he did not waive the particular remedy and elect to rely upon that of condemnation, by consenting to the construction ancL maintenance of the track.

The trial court evidently came to the conclusion that appellant consented to respondents’ act and chose to rely upon his right to the compensation therefor, which he was entitled *534to by law and. which is recoverable in condemnation proceedings, and so waived the right to prosecute such an action as this. It seems that such consent and.waiver appears quite clearly by the pleadings. Respondents knew that if they invaded appellant’s property, or violated a remediable right appurtenant thereto secured to him by the written law, they were bound to compensate him therefor, and the only reasonable inference, under all the circumstances, is that their assurance of compensation had reference thereto, the amount to be paid, unless agreed upon, to be awarded, in due course, in the statutory way. • When the assurance was given, it is alleged that appellant “made no further protest until after defendants, railway companies, commenced to operate trains over the highways.” That is to say, relying upon his attitude of consenting by ceasing to protest, they, without first making compensation to him, continued construction of the track to completion and put the same to use by operating trains thereon and that then he commenced this action, among other things, to compel them to remove the track.

It seems that the situation thus created satisfied the principle of the cases before cited. Out of the circumstances, by force of the statute, there arose an implied contract on respondents’ part to pay appellant his legal damages, determinable in condemnation proceedings, unless agreed upon, and in no other way. In the words of *Kuhl v. C. & N. W. R. Co.*101 Wis. 42, 77 N. W. 155, “The assent waived the tortious taking, if there were such, and an obligation in the nature of an implied contract between the parties arose from the situation, — on the one part to pay the legal damages caused to plaintiff’s land by the construction of the road, and on the other, to accept the same in full for the permanent right to maintain such road as regards its effects upon plaintiff’s lands,” — a-mere “chose in action” enforceable, if necessary, by the special remedy provided by statute. Express or implied consent to the appropriation by railroad companies of *535land, or rights appurtenant thereto, as in this case, is a relinquishment of the thing appropriated and acceptance of the legal compensation therefor, with the special remedy incident thereto. Thereby the very foundation of a trespass action becomes impossible, rendering the doctrine of trespass, continuous trespass, and nuisance actions inapplicable to the situation thus created.

It follows that the demurrer to the complaint was properly sustained.

Notwithstanding the result of this appeal, the action need not necessarily be dismissed. As held in *Cronin v. Janesville T. Co.*163 Wis. 436, 440, 158 N. W. 254, under' sec. 28366, Stats. 1913, the trial court should permit the plaintiff, by proper amendment within a reasonable time, costs being in the discretion of the court, to turn the action into a proceeding for condemnation, and to prosecute the same as if regularly commenced, and render a judgment of dismissal only on neglect to so amend.

*By the Court.*— The order is affirmed, and the cause remanded to the circuit court for further proceedings in accordance with this opinion, one bill of costs to be taxed in each case.