Hooe v. Chicago, Milwaukee & St. Paul Railway Co.

NewmaN, J. There is no dispute about the facts. The contention is over the proper application of the law to the undisputed facts. It is whether the appellants are barred from the maintenance of this proceeding for the condemnation of the lands for respondent’s right of way, by any statute of limitations. The contention,. in substance, is that because the appellants were mere remaindermen, having no right of action to recover the possession of the land from a person holding under the life tenant until after the termination of the life estate, they had no right to maintain this proceeding. So, consequently, the statutes of limitation would not begin to run against them until after the termination of the life estate; and this proceeding -was begun within ten years after the death of the life tenant. So, it is claimed the appellants are not barred from this proceeding by any statute of limitation. It is, no doubt, the law that the appellants could not have maintained an action for the recoverjT of the land itself during the lifetime of the life tenant, and that the statute which bars the recovery of the lands would not begin to run during the subsistence of the life estate. Barrett v. Stradl, 73 Wis. 385—395. But it is not perceived that these considerations are controlling of the contention; for this is not a proceeding which looks to a recovery of the possession [305] of the land itself, but only to .the recovery of damages for the taking of a part of it and the consequent injury to the whole tract. It was competent for the appellants to institute and maintain this proceeding at any time; at least, since the enactment of ch. 119, Laws of 1872 (R. S. 1878, sec. 1852). The fact that they ivere merely remaindermen did not disable them to bring an action for such an injury to their estate in the land. R. S. 1878, sec. 2198. But an action for such-an injury must be brought within six years after the right of action accrues, and cannot be maintained afterwards. R. S. 1878, sec. 4222, subd. 5. It is the settled law, since the enactment of ch. 119, Laws of 1872, that, where the owner of land has permitted a railway company to locate, construct, and operate its road thereon, he has thereby waived and lost all his former remedies for the recovery of the land or for injuries to it. But all such former remedies are merged in the proceeding for compensation, provided by the statute itself. Frey v. D., S. S. & A. R. Co. 91 Wis. 309. It may well be that the consent of the life tenant to the occupation of the land by the respondent with its railroad will not be binding upon the remainderman. So that the former remedies may remain to him, unless he, too, consents. But these appellants have made their election to take compensation. This, in effect, ratifies and consents to the occupation of the land by the respondent. This proceeding is virtually an action for compensation. If not in strictness an action for damages for an injury to the real property, it is the only legislative substitute for such an action, and the only remedy which remained to the appellants after they had waived a recovery of the land itself. This remedy was lost to them by their omission to assert their right'in time. They are foreclosed by delay. By the Court.— The judgment of the circuit court is affirmed.