Williams v. W. Union Ry. Co.

• Court: United States State Supreme Court of Wisconsin
• Citation: 5 N.W. 482,50 Wis. 71
• Parties: WILLIAMS v. WESTERN UNION RAILWAY COMPANY.
• Decision Date: 20 April 1880

50 Wis. 71

5 N.W. 482

WILLIAMS

v.WESTERN UNION RAILWAY COMPANY.

Supreme Court of Wisconsin.

Filed April 20, 1880.

Appeal from circuit court, Racine county.

John T. Tish, for respondent.

Henry T. Fuller, for appellant.

ORTON, J.

The defendant company, in 1854, procured a right of way through the south half of block 58, in the school section addition to the village, now city, of Racine, by the condemnation, according to law, of a strip of land along the then located track of their road, four and one-half rods in width, two rods of which were west of the center of said track. In 1855 the company obtained, by deed of one Fratt, “a strip of land six rods in width, for the uses and purposes of said railroad company, along the line of their road as at present[then] located; [through the south half of said block;] and, also, all the land in the south half of said block, situated west of the route of said road.” In 1857 the company deeded to one Engerud “all of that portion of block 58 which lies west of and beyond the western boundary of the right of way of said company's railroad, as the same is located and established.” In 1869 Engerud deeded to the plaintiff “the south half of all that part of said block which lies west of the western boundary line of the Western Union Railroad Company's right of way.”

The company claims a strip of land one rod in width, west of the western boundary line of their original right of way, through the south half of said block, by virtue of the grant of the six rod-strip of land in the Fratt deed of 1855, and took possession of the same, and the plaintiff claims and seeks to recover said strip by virtue of the company's deed to Engerud, of 1857. The report of the commissioners, in the condemnation proceedings of 1854, and its confirmation by the circuit court, and all of the above deeds, were introduced in evidence. There was much other evidence given, and on behalf of both parties, in respect to the former use, possession and fencing of this rod strip, and certain resolutions of the board of directors of the company, and certain maps and plats of the company and of the city of Racine, showing the right of way of the company through the south half of block 58, were also introduced in evidence.

We think that this evidence was clearly incompetent as affecting the construction of any of the above deeds, or the location and boundary of any of the parcels of land conveyed. It is at least questionable, in a case where title is not claimed by an adverse possession of 20 years, whether the company would be estopped by enclosing only part of their right of way, and tacitly allowing the possession and use of the residue by others for a considerable length of time. Warner v. Fountain, 28 Wis. 412. And certainly any such evidence could not affect the construction of deeds or the title conveyed by them. The resolutions of the board of directors of the company, before the right of way was obtained, and the maps and plats of the company, or of the city, made afterwards, could not affect in any respect the right of way of the company over the lands of others, or their title to lands acquired by purchase, for the first must depend solely upon the proceedings of condemnation of 1854, and the latter upon the Fratt deed of 1855.

This evidence was not only incompetent, but it was well calculated to confuse the case and cause the error complained of, of submitting the whole issue to the jury upon all the...