#### Cronin, Appellant, vs. Janesville Traction Company and another, Respondents.

*May 5*

May *23, 1916.*

*Deeds: Boundary of land conveyed: Highways: Dedication: Width: Old fences: Street railways: Occupation of land Toy consent: Condemnation: Mistake in remedy: Amendment of proceeding.*

1. A deed describing the land conveyed as hounded on one side by a certain road gave the vendee title to the center of the highway, there being no words in the deed expressly or necessarily limiting the boundary to the side of the highway.

2. A highway by parol dedication and user being limited by the extent of such user, a fence which has stood in its present location and marked the east line of such a highway for upwards of fifty years establishes the line of such highway at the place in question.

3. Land on the west side of a highway, by user was platted by the owners, and on the plat the highway was represented as being four rods wide, with its center line on their eastern boundary. East of such center line, however, within the limits of the highway so represented, an old fence marked the east line of the highway by user, and the land east thereof was occupied up to-such fence. Afterwards the owners who made said plat bought the land east of the highway, but the fence remained and the occupancy up to it continued. Later said owners conveyed the last mentioned land to plaintiff, describing it as bounded on the west by the highway — not by the highway according to the plat. *Held,*that the old fence continued to mark the east line of the highway, there never having been any effective dedication of any land east of it.

4. Where the owner of land, by express or tacit consent, has allowed a railway company to occupy his land for railway purposes, he cannot bring an action for trespass, but must proceed under the condemnation statute to have his compensation and damages assessed.

5. Where, in an action to enjoin street and interurban railway com-' panies from occupying a part of plaintiff’s land adjoining the highway with their railway embankment, it appeared that plaintiff had consented to such occupancy by permitting the embankment to exist without objection for nearly three years, so that his only remedy was by condemnation proceedings under sec. 1852, Stats. 1913, the court should, under sec. 2836&, Stats. 1915 (Laws 1915, ch. 219, sec. 2), have made an order granting leave to plaintiff to file a petition for condemnation against the defendant company which built and owns the embankment.

*437Appeal from a judgment of tbe circuit court for Nock county: Geoege G-eimm, Circuit Judge.

*Affirmed as to one respondent; reversed as to the other.*

Action in equity to enjoin tbe defendants from occupying a part of plaintiff’s real estate witb tbeir railway embankment. Tbe plaintiff owns a parcel of land of about twenty-four acres in tbe city of Janesville, lying east of tbe Beloit and Janesville road (now called Beloit avenue) and north of Eastern avenue. Its location will more readily be understood by reference to tbe plat bere inserted:

*438The defendant traction company, a domestic corporation, •constructed its street railway upon said Beloit avenue a number of years ago under a franchise from tbe city. Tbe other •defendant, the *Rochford & Interurban Railway*Company, is an Illinois corporation which operates interurban cars over the same tracks, also having a.franchise from the city so to do. The plaintiff has duly released all damages resulting from the operation of interurban cars on the street. About the year 1912 the street railway tracks were moved further east than they had previously existed, especially at and about the •corner southwest of Spring Brook bridge. In their new location the east rail of the track for a number of rods comes within a few feet of the fence (marked on the plat “old ■fence”) and the embankment sustaining the track completely ■covers the fence and extends several feet eastward, filling up a ditch east of the fence. This is the supposed encroachment •of which the plaintiff complains. He claims that the fence is the true line, while the defendants claim that the road is four rods in width and that the true line is a considerable distance east of the fence along the broken line indicated in the jplat.

The court found in accordance with the defendants’ contention and dismissed the complaint, and the plaintiff appeals.

The cause was submitted for the appellant on the brief of *Rdiuard H.*Ryan, and for the respondents on that of *Thos. S. Nolan.*

WiNslow, C. J.

It is quite clear that the trial court was wrong as to the location of the east line of the highway at the place in question. There was no dispute as to the facts. The Janesville and Beloit road has existed for more than sixty years. There is no proof as to how or by whom it was first laid out, but it has been traveled longer than the time named. Eor upwards of fifty years, according to the uncon-tradicted evidence, the so-called “old fence” has stood in its *439present location and marked tbe east line of tbe road as used. Tbe plaintiff acquired title to tbe premises marked “plaintiff’s land” on tbe plat in August, 1895, and bas occupied them ever since, claiming tbat tbe fence was tbe line of tbe highway, just as bis predecessors in title did for thirty years previously. Tbe plaintiff’s deed described tbe land as bounded on the west by tbe Janesville and Beloit road. This, of course, gave him title to tbe center of tbe highway, there being no words in tbe deed expressly or necessarily limiting tbe boundary to tbe side of tbe highway. *Gove v.*White, 20 Wis. 425.

So far as tbe east half of this highway is concerned it is only a highway by parol dedication and user and is limited by tbe extent of such user, which, at tbe place in question, ended at tbe fence. ■

Tbe situation is different as to tbe west half of the highway. Tbe property on tbe west side of tbe highway was owned by George L. and Sarah Carrington, who in May, 1891, platted it and recorded tbe plat under tbe name of Willow Grange addition. Upon this plat Beloit avenue was represented as a four-rod .highway with boundaries coinciding with tbe broken lines on tbe plat. This, of course, was a complete dedication of tbe west half of tbe four-rod strip, but as to tbe east half it bad no effect. True, tbe evidence further shows tbat tbe Carringtons bought tbe Cronin tract in July, 1892, held it until August 21, 1895, when they sold it to tbe plaintiff. Tbe fence, however, remained, as well as tbe adverse occupation up to tbe fence, and when tbe Carringtons deeded to tbe plaintiff they bounded tbe land on tbe west by tbe highway. Had their deed to *Cronin*described tbe west boundary as tbe highway “according to tbe plat of Willow Grange addition,” there would be strong ground for claiming tbat tbe plaintiff would be bound to recognize tbe highway as four rods in width according to tbe plat, but tbe boundary was fixed at tbe Janesville and Beloit road, tbe east line of which bad been established, as we have seen, for many years.

*440So the court should have found that the fence line was the east line of the highway at this point.

It does not follow, however, that judgment for the plaintiff should have been rendered. Street railway companies now have the right of eminent domain. Secs. 1863a, 1863&, Stats. 1913. Within certain limitations (immaterial here) their powers and duties are the same in this respect as the powers and duties of commercial railroads. *In re Plowright,*140 Wis. 512, 122 N. W. 1043.

It was long ago held by this court that when the owner of land, by express or tacit consent, has allowed a railway company to occupy his land for railway purposes, he cannot bring an action for trespass, but must proceed under the condemnation statute to have his compensation and damages assessed. *Hanlin v. C. & N. W. R. Co.*61 Wis. 515, 21 N. W. 623. This holding has been followed ever since. *McCord v. Eastern R. Co.*136 Wis. 254, 116 N. W. 845; *Pabst B. Co. v. Milwaukee, 15*7 Wis. 158, 147 N. W. 46.

In the present case it appears that the embankment was placed on the plaintiff’s land substantially as it now exists, nearly three years before the commencement of this action, and there is no evidence showing any protest or objection thereto by the plaintiff. This must be held conclusive evidence of consent. The plaintiff’s remedy, therefore, was by commencing condemnation proceedings himself under the provisions of sec. 1852, Stats. 1913.

It is not necessary, however, that the plaintiff’s action be dismissed. Under sec. 2836S, Stats. 1915' (Laws 1915, ch. 219, sec. 2), the trial court is required, in case of mistaken remedy like the present, to make an order granting leave to the plaintiff to amend his action or proceeding within a reasonable time, costs being in the discretion of the court, and to prosecute the amended action or proceeding in that court or in the proper court having jurisdiction, as the case may be. Only in case of neglect or refusal to so amend should the action be dismissed.

*441In tbe present case tbe court should have found as a fact tbat the fence marked tbe east line of tbe highway and that tbe plaintiff have'leave to file (within a time to be fixed by tbe court) a petition for condemnation against tbe *J anesville Traction Company*(tbe corporation which owns and built tbe railroad and embankment in question). It does not appear tbat tbe *Interurban Company*is a necessary or proper party to tbe condemnation proceedings and as to it tbe action was properly dismissed.

*By the Court.*— Judgment of dismissal and costs affirmed as to tbe *Rockford & Interurban Railway Company*and reversed as to tbe *J anesville Traction*Company, and action remanded for further proceedings in accordance with tbe opinion. But one bill of costs to be taxed in this court, namely, in favor of tbe appellant and against tbe last named respondent.