Morris v. Wisconsin Midland Railroad

Winslow, J. The proceedings were properly dismissed. The institution of condemnation proceedings by the company in August did not constitute a taking, because the company had discontinued them so far as lot 22 is concerned. This they had a right to do. Lewis, Em. Dom. secs. 655, 656; Driver v. W. U. R. Co. 32 Wis. 569-583. The fact that when the track was first laid the eaves of a passing car would extend a few inches over the petitioner’s west line does not constitute a taking in view of the facts in evidence. It is clear that the respondent did not intend to encroach on petitioner’s land, and when it found that it [545] had-, it speedily removed its track. Under these circumstances, we think, there was simply a trespass. Eespondent had the right to cease trespassing. It does not appeardhat it will now be necessary for the company to encroach on petitioner’s land for the purpose of excavation or embankment or passageway for its cars. THe claim that appellant is entitled to damages under ch. ,255, Laws of 1889,1 cannot be maintained. The utmost that can be claimed as to the alley is that the sides or eaves of a passing car may extend a few inches over the south half of the alley opposite appellant’s lot, east of a continuation of his west line, and that a few inches of filling may there be necessary for the convenience of travel. We shall spend no time discussing this question. It cannot be seriously claimed that either of these facts would constitute obstruction or use of the alley which would appreciably damage appellant’s property. By the Court.— Order affirmed.