#### Loop vs. Chamberlain.

*Railroads*— Appropriation *of land,for track <&o.*— Liability *for trespass, where ralm not ascertained and tendered.*

1. In this state a railroad company (or persons acting under it) entering upon land and permanently occupying and appropriating it to the use of its railroad, without making compensation therefor (or having its value ascertained as provided by law, and tendering,the amount when so ascertained), is liable in trespass for the actual damages, and not merely for nominal damages.

2. The owner of land so entered upon by or for the La Crosse and Milwaukee Railroad Company could not institute proceedings to have the value of the land assessed by commissioners under its amended charter, ch. 280, Laws of 1856; and probably could not do so under the original charter, ch. 198, Laws of 1852.

8. But the land owner not having in fact taken steps to have the value assessed (whether it was or was not in his power to do so), the company was itself bound to take the initiative, and could not acquire a right to permanently appropriate the road without actual payment or tender of compensation.

APPEAL from tbe Circuit Court for *Milwaulcee*County.

Action for a trespass upon land. Tbe substance of tbe pleadings, and tbe decision of tbis court reversing a judgment of' nonsuit, will be found in 17 Wis., 504-12. Tbe grounds of tbe action and defense will also sufficiently appear from tbe opinion on tbe present appeal.

Verdict and judgment against tbe defendant for nominal damages; and tbe plaintiff appealed.

*D. J. M. Loop*and *Alva Stewart,*for tbe appellant,

as to tbe proper measure of damages, cited Sedgwick (2d ed.), 29, 134, 135; *McWilliams v.*Bragg, 3 Wis., 424 ; 2 Grreenl. Ev., 244; *Bobbins v. Mil & Hor. B. B. Go.,*6 Wis., 636; 4 Cband., 72; 2 Hilliard on Torts (2d ed.), 89.

*John W.*Garry, for respondent:

Tbe plaintiff was entitled to compensation as of tbe date of tbe undertaking, viz., to tbe value of tbe land at that time,, and any additional damages actually sustained. *Bobbins v. B. B. Co.,*6 Wis., 636. Tbis amount, witb interest from tbe taking until payment, be is still entitled to in tbe proper proceedings. But be cannot recover them in tbis action. “ Tbe mode prescribed by tbe charter is tbe only way of arriving at tbe com*136pensation to be allowed, in sucli cases.” *Pettibone v. La Grosse & MU. B. R Co.,*14 Wis., 448; *Ford v. Ch. &N.W.B. R Co.,*id., 617; *Davis v. La Crosse & Mil. B. B. Co.,*12 Wis., 16; *Kim-ble v. Whitewater Valley Canal Co.,*1 Ind., 285; *Null v. Same,*4 id., 431; *Calking v. Baldwin,*4 Wend., 667; *Stowell v. Flagg, 11*Mass., 364; *New Albany & Salem B. B. v. Connelly,*7 Ind., 32 ; *Newcomb v. Smith,*1 Chand., 71; *Bogers v. Bradshaw,*20 Johns., 735; *Wheelock v. Young,*4 Wend., 648. While, therefore, the plaintiff was entitled to sustain his action for a technical trespass, and on a proper case, perhaps, obtain an injunction against a continuance of the trespass, he is excluded from recovering in this action “the permanent damages, or those which would accrue to the plaintiff bj the continued use of the land by the company.” 14 Wis., 617. 2. The charter of the company, Laws of 1852, ch. 198, sec. 13, provides for the assessment of damages by arbitrators chosen by the parties, and the remedy was equally open to both parties. Ch. 280, Pr. Laws of 1856, is not repugnant to this provision, and does not repeal it. Besides, the latter act, in its general scope and object, is unconstitutional and void, and therefore does not operate to repeal the original charter.

Cole, J.

In this case the circuit court instructed the jury that the plaintiff could only recover nominal damages, and that this rule must govern them in their verdict. And the only question which we need consider on this' appeal is, the correctness of this ruling.

The action is for trespass to real estate. It is alleged in the complaint, in substance, that the defendant, in the months of June and July, 1856, with his servants, workmen and teams, wrongfully entered upon the plaintiff’s close; broke up the ground; threw and cast thereon divers quantities of earth and gravel, and proceeded to locate a railroad track upon and over the same, against the plaintiff’s wish and consent. And evidence was offered on the trial strongly tending to establish this *137state of facts. Now, as we understand tbe ruling of tbe circuit court, tbe question as to tbe extent of injury sustained by tbe plaintiff in consequence of these acts was expressly withdrawn from tbe jury, tbey being directed to find merely nominal damages.

Tbe defense seems to be, tbat tbe defendant, as contractor under tbe La Crosse and Milwaukee Railroad Company, entered upon tbe land and built a road across tbe same, and after-wards, as lessee or mortgagee of tbe company, operated it as a railroad; and tbat these acts were tbe injuries complained of, and no others. And although tbe railroad company has permanently appropriated tbe land of tbe plaintiff to 'its use, and are now and have been for years occupying it with a railroad track, and using it for tbe purposes of its road, yet it does not appear tbat any compensation has been made for tbe property thus taken, as required by tbe constitution and as contemplated by its charter. Under these cfrcumstances, there can be no doubt tbat neither tbe railroad company, nor any person acting-under it, has any right to occupy tbe land or exercise acts of ownership over it. Tbey are simply wrongdoers, and must be considered as trespassers. *The People v. The Hillsdale and Chatham T Co.,*2 Johns., *190; The Trustees of the Pres. Society of Waterloo v. The Auburn and Rochester R. R. Co.,*3 Hill, 567; *Wager et al. v. Troy Union R. R.,*25 N. Y., 526; *Hooker v. New Haven & Northampton Co.,*15 Conn., 312; *Bradley v. The New York & New Haven R. R. Co.,*21 id., 294; *Nicholson v. The Same,*22 id., 74. See also *Carpenter v. The Oswego and Syracuse R. R. Co.,*24 N. Y., 665; *Mahon v. The N. Y. Central R. R. Co.,*id, 658; *Hazen v. Boston & Maine R. R. Co.,*2 Gray, 574. Now it is very apparent tbat there has been an unauthorized invasion of tbe rights of tbe plaintiff, and tbat damages must be given commensurate with tbe injury sustained. His close has been entered upon; bis possession disturbed; bis rights of property violated. And tbe question is, can be only recover nominal damages for these injuries, or may be recover *138sucb damages as be shows be bas sustained from them ? Suppose it appears in evidence that a direct and substantial injury to tbe plaintiff’s land bas resulted from tbe acts of tbe defendant : ought be not to recover satisfaction therefor in this action ? It is said there was no attempt on tbe part of tbe plaintiff to prove that tbe defendant committed any trespass, or did any injury or damage to tbe plaintiff, except what naturally and necessarily resulted from taking tbe land for tbe purposes of tbe road and building and operating a railroad across tbe same. Concede that this was so, and yet shall not tbe plaintiff be permitted to recover compensation for such damages as have resulted from tbe violation of bis rights ? Tbe principle is well established in this state, and ought to be considered as settled, that neither a railroad company, nor any one acting under it, can enter upon a person’s land and permanently occupy and appropriate it to the use of a railroad, without making compensation therefor, or doing what in contemplation of law is deemed equivalent to making compensation — having tbe value of tbe property taken ascertained by commissioners, and tendering tbe amount to tbe owner. Until this is done, tbe company acqufres no right to exercise acts of ownership over tbe property or to use it for tbe purposes of its road. . In this case, as already observed, it is not claimed that tbe company bas made compensation for tbe land taken for tbe use of its road, or even taken any steps to have tbe damages assessed under its charter. Tbe company, therefore, and every one assuming to act under it, so far as tbe rights of tbe plaintiff are concerned, is a trespasser. It is argued that tbe plaintiff should not be beard to say that tbe company and tbe defendant are mere trespassers on his land because tbe company bas not taken measures to assess and pay its value, since tbe remedy was open to him under tbe charter to obtain compensation for bis property. We are not clear that tbe plaintiff, under tbe provisions of tbe original charter (chap. 198, sec. 13, Laws of 1852, pp. 325-331), could have taken tbe proper steps to have arbitrators chosen to ap*139praise tbe damages. It is very obvious that be could not institute proceedings for tbe appointment of commissioners under tbe amended charter (see chapter 280, sec. 2, Pr. Laws of 1856, p. 535); and we think be could not have instituted them for tbe selection of arbitrators under tbe act of 1852. But how-tbis may be, this court has in effect decided that tbe company must take tbe initiative to acquire tbe right to use tbe land for tbe purposes of its road, and that no permanent appropriation of it can be made from tbe owner without actual payment or tender of compensation. *Powers v.*Bears, 12 Wis., 213, and cases there cited. And when tbe company neglects, as in this case, to have tbe damages assessed as contemplated by its charter, and is guilty of a most unreasonable delay in making compensation for tbe land taken, tbe owner ought to be entitled to recover, in an action of trespass, all the damages which be may have sustained by tbe unauthorized acts of tbe company, or any one acting under it. *Gushman v. Smith,*34 Maine, 247.

It follows fi’om these views, that tbe circuit court erred in bolding that tbe plaintiff could only recover nominal damages.

*By the Gourt.*— Tbe judgment is reversed, and a *venire ele novo*awarded.