#### Schneider, Appellant, vs. Knickerbocker Ice Company and others, Respondents.

*September 9*—

September *29, 1903.*

*Railroads: Conveyance: Construction: Right of way as “located”: Spur traclc to warehouse.*

1. A conveyance to a railway company of a riglit of way “as now located, to tlie terminus of the road,” on, over, and along certain land, may be construed as conveying no title beyond the point on said land to which, the right of way had been legally located by surveying and staking out the center line thereof for the purpose of constructing and operating the road, as required by sec. 1846, Stats. 1898, even though, for the convenience of the grantor, the company had, before such conveyance, extended, or permitted the grantor to extend, a spur track beyond the terminus to which the right of way had ’ been so legally located.

*1722. Where in such a case the grantee company afterwards removed a part of said extension of the spur track, as being upon a strip of land not acquired by it for right of way purposes, and its successor in title makes no claim to such strip, but acquiesces in the owner’s claim that there is no right of way over it, the owner of a warehouse on an adjoining tract has no right under sec. 1802, Stats. 1898, to build o'r maintain a track over such strip to connect his warehouse with the spur track.

Appeal from a judgment of tbe county court of Waukesha county: M. S. Gbiswold, Judge.

*Affirmed.*

*■*Action to restrain defendants from removing a spur railway track, constructed by plaintiff, from certain lands where it was connected with the railway system of the defendant railway company to permit the moving of cars from such system to and from plaintiff’s icehouse situated some distance from the terminal grounds of such railway company, and to establish his right to have such connection maintained, and to enjoy, by means thereof, the benefits of sec. 1802, Stats. 1898.

There is no bill of exceptions. The findings indicate the issues made by the pleadings and litigated. They are in substance and effect as follows: In and prior to December, 1899, the North Lakes Wisconsin Ice Company owned a tract of land in section 16, town 28, range 17 east, in Waukesha county, Wisconsin, bounded on the westerly side by the west line of such section. ' During the period mentioned the Milwaukee & Superior Eailway Company, without having acquired a.right of way over such land, surveyed, laid out, and established a center line therefor, traversing the same in an easterly and westerly direction, the westerly terminus being 100 feet east of the westerly boundary thereof, and occupied such right of way with its railway track, and subsequently extended such track, or permitted the same to be done by said ice company for the purpose of accommodating the latter in its business of dealing in ice, so that on December 1st, aforesaid, the westerly end of the traclcwas about forty feet west *173of said section line and on section 17. On said day said ice company conveyed to tbe railway company a right of way on said section 16, describing tbe same as one fifty feet wide as now located to tbe terminus of tbe road. August 14th thereafter plaintiff acquired an undivided half interest in a right of way. fifty feet wide for a railway track in said section 17, connecting a place of business to be operated by him with tbe easterly boundary line of said section where defendant’s railway track crossed tbe same. Subsequently tbe president and general manager of such railway company caused its track in said section and tbe westerly twenty feet thereof in section 16 to be removed, believing that portion to be upon lands not acquired by it for right of way purposes. A day or two' thereafter said company conveyed its property, including whatever right it possessed to maintain a railway track upon its right of way in said section 16, to the defendant railway company. In September, 1901, plaintiff, at his own expense, constructed a spur track from the terminus of said track east of the line between sections 16 and 17, in a westerly direction to his icehouse in section 17, traversing the right of way in said section 17 of which he was part owner as aforesaid. He connected his track in section 16 with the defendant railway company’s track. Immediately thereafter the defendant *Knickerbocker Ice Company*and the defendant *John Field*threatened to remove all that portion of plaintiff’s track in section 16, and they intended so to do. To prevent such removal this action was commenced. The defendant railway company made no effort to disturb the situation created by plaintiff in any way. Plaintiff, at the time of the commencement of the action, was willing to comply with sec. 1802 aforesaid, and claimed the benefits thereof, and that he was the owner of a warehouse coming within its provisions, which he was entitled to reach from defendant railway company’s track by a spur track connected therewith. Defendant *John*Field, at the time of the threatened removal as aforesaid, *174owned tbe land in section 16 upon which the plaintiff constructed his track, subject to any rights the defendant railway company had therein. He denied that it possessed any such rights, and his position was acquiesced in by said company. Prior to the conveyance to said company its grantor, by the president and general manager thereof, promised plaintiff to extend its spur track to an icehouse to be erected by him in section l'T, entitling him to enjoy the use of a railway connection between his icehouse and the railway system of such grantee, provided he conveyed the right of way for such track to said grantee and agreed to furnish it with a certain amount of freight; but no such conveyance or agreement was ever made; neither did the defendant railway company, at the time it purchased the property, have any notice of the existence of such promise. The terminus of said company’s main line is about one mile from the point in dispute. It is reached by a spur track. Neither said company’s yard nor terminal limits reaches to or includes the location of plaintiff’s icehouse.

Upon such facts the conclusion was reached that the defendants were entitled to a judgment dismissing the plaintiff’s- complaint with costs.

*J. F. Wildish,*for the appellant.

For the respondents *Knickerbocker Ice Company, Wisconsin Lalces Ice & Cartage Company,*and *John Field,*there was a brief by *By an, Merton & Newbury,*and oral argument by *T. F. Byan.*

*C. H. Van Alstine,*counsel, for the respondent *Chicago, Milwaukee & St. Paid Bailway Company.*

Marshall, J.

But one question discussed in the briefs of counsel need be considered in deciding this case. We see no way of escape from the decision of the trial court that the place where appellant insists upon maintaining his track and connecting it with that of tlie respondent railway company is *175•on premises owned neither by him nor such company, nor in which either owns a right of way. Appellant’s counsel concedes, if that decision stands, that the judgment must be affirmed.

It is claimed that the railway company in fact owned a right of way up tó the west line of section 16, including the premises in dispute, because it succeeded to the rights of the Milwaukee & Superior Eailway Company after such company obtained a conveyance of a right of way for its railroad in said section 16, to the terminus thereof as the right of way ■was located, a track being then in place to and west of said section line, though the right of way was never surveyed to a point nearer such line -than a point about 100 feet east of the same. It is well understood, we may safely say, that the location of a railway right of way, in a legal sense and in the sense the term is ordinarily used in railway parlance, is not accomplished by laying down a railway track, but by surveying and staking out the center line of the right of way for the purpose of building a railway track thereon- and operating such track as required by sec. 1846, Stats. 1898. Eespondent railway company’s grantor never so established or located a right of way including the premises in question, so far as appears by anything in the record. From the circumstances that for the convenience of one of its customers it permitted such customer to extend, or itself extended, its track beyond the terminus fixed by the located right of way, and subsequently conveyed the road, so far as the right of way had been located, it does not necessarily follow that its grantee obtained title to the premises beyond the surveyed right of way. At the time the track east of the west line of section 16 and on the premises in dispute was removed there was certainly legitimate ground for the claim that no railway right of way had been located thereon, in a legal sense, or in the sense the term was used in the deed. In that view its president and general manager having seen fit to abandon. the disputed *176premises and done so, and its grantee, tbe respondent railway company, never having’ made any claim thereto, but submitted to the claim of *-John Field,*— conceded to be the owner subject to such rights as such grantee may have therein — that it has no right of way over such premises, a third party circumstanced as plaintiff is cannot be heard successfully to-claim to the contrary in order to enable him to enjoy a privilege dependent thereon. It seems quite clear that all parties interested in the title to the land in dispute prior to the claim of the appellant understood that the right of way conveyed to-respondent railway company’s grantor in section 16 did not extend to the west line of such section, and that with such view *John Field*was permitted to- take and enjoy absolute possession of the premises as owner. Such parties having-acquiesced in that construction of the conveyance, and it being a reasonable construction and one which was probably in the minds of the parties when the deed was made, the court cannot otherwise construe it to enable appellant to enjoy a privilege without which he will be a sufferer in respect to his business.

*By the Court.*— The judgment of the circuit court is affirmed.