Cassidy v. Chicago & Northwestern Railway Co.

Taylor, J. We think the demurrer was properly sustained, for the reasons stated by the learned circuit judge. (1) If the complaint be construed to be an action to recover damages of the railway company for wrongfully entering into and holding the possession of the lands of the plaintiffs [444] without making compensation, therefor, then the action cannot be sustained, for the reason that it appears from the complaint that the company took peaceable possession of said land about three years before the commencement of this action, and have constructed their railroad on and over the same; and the complaint does not allege that such taking was wrongful or against the consent of the plaintiffs. Under these circumstances, and leaving out of consideration the fact of the making a deed of at least part of the lands to the railwa3r company, and treating the case as though no deed had ever been made, then the plaintiffs’ only remedy is by taking proceedings under sec. 1852, R. S., to recover compensation for the lands so taken. This is well settled by the decisions of this court. See Sherman v. M., L. S. & W. R. Co. 40 Wis. 645, 651; Bohlman v. G. B. & L. P. R. Co. 30 Wis. 105, 108; Buchner v. C., M. & N. W. R. Co. 56 Wis. 403, 419; S. C. 60 Wis. 264; Hanlin v. C. & N. W. R. Co. 61 Wis. 515, 521, 522; Mil. & N. R. Co. v. Strange, 63 Wis. 118; Taylor v. C., M. & St. P. R. Co. 63 Wis. 327. These cases very clearly show that the complaint does not state facts sufficient to constitute a cause of action to recover damages for the wrongful taking and holding possession of the lands of the plaintiff. The learned counsel for the appellant upon the hearing of this appeal claims that the action is an action upon contract to recover the price agreed to be paid by the company for the land they have taken possession of, and not an action of tort to recover damages for a wrongful entry and possession by the defendants, so that we need not further discuss that question. There arc two objections to a recovery upon such alleged contract. The first objection is that the plaintiff does not tender or offer to make a deed for the land upon the payment of the alleged purchase price. And the facts alleged in the complaint, which must be taken as true upon demur [445] rer, show that the railway company has never acquired any title to the land in question. If the plaintiff is satisfied to ratify the deed mentioned in the complaint made to the railway company, notwithstanding it was wrongfully altered and delivered by the agent of the company, he should have alleged his willingness to do so, or at least have omitted to allege facts which show that the deed was void and conveyed no title to the company. He cannot avoid the deed by his allegations, and still claim the consideration for which it vras intended to be given. Having alleged facts which show that the railway company has no title to the lands in controversy, he cannot recover upon a parol agreement by the company to pay $500 for the same, without offering to convey the land to said company. By the Gourt.— The order of the circuit court is affirmed, and the cause is remanded for further proceedings.