1860. sota Railroad Company became the owner of the La Crosse Jan. Term, and Milwaukee railroad and its appurtenances, and was made a defendant to the action, by a supplemental complaint. The answer of the Milwaukee and Minnesota Railroad Com- THE LA CROSSE pany, admitted the location of the track of the railroad through the plaintiff's land, but denied any information sufficient to form a belief, whether there was an engineer's certificate on file in the office of the register of deeds of Columbia county, or information sufficient to form a belief, as to the value of the plaintiff's land taken and used by said company, or as to the amount of damage done thereto. The answer further stated, that the land and lots mentioned in the complaint, were mortgaged for nearly or quite the full value thereof, and the title, if any, of the plaintiff, was liable to be wholly cut off by the foreclosure of said mortgages; that said lots three and fourteen were part of forty acres, upon which a mortgage was executed on the 10th of April, 1854, by one Dunn to the L. & M. R. R. Co., for $5000, and recorded the next day, in the office of the register of deeds in said county, which mortgage was assigned by the company, and was then outstanding and unpaid; that there was another mortgage on said lots three and fourteen, (together with lots four and thirteen in the same block), by the plaintiff to said Dunn, for $360, recorded in the proper register's office, on the 24th of June, 1856, and held by one Clark, and unpaid, and a mortgage upon the eleven acres described in the complaint, held by one Barden, recorded in said register's office, on the 3d day of February, 1858, on which was due about the sum of $900; wherefore the defendant prayed the court that if it should render any judgment in the action, in favor of the plaintiff, it should be so framed as to protect the interest of all concerned, so that the defendant, upon complying with the terms thereof, would acquire a perfect title to any of said land adjudged to have been taken, and not be liable to be vexed by further suits in regard to the same. The answer was verified. The plaintiff filed a reply to said answer, stating that he had no information sufficient to form a belief, whether said Dunn ever executed a mortgage for $5,000 upon said forty DAVIS V. & MISSISSIPPI RAILROAD CO. et al. 1860. DAVIS Jan. Term, acre tract, but if such a mortgage was made, it was given in exchange for the stock of said company and was void; that he held said lots by a warranty deed from said Dunn, THE LA CROSSE and that there was a portion of said tract still owned by said RAILROAD CO. Dunn, worth more than sufficient to satisfy the amount of V. & MISSISSIPPI et al. said mortgage; that he admitted the existence of the two other mortgages referred to in the answer, but was willing, as he had at all times been, that so much of the damages caused by the taking of his said lots of land by the defendants, as might be necessary for that purpose, should be applied to their payment. The cause was tried by the court, without a jury, and before the introduction of any evidence, the defendants, by their counsel, insisted that inasmuch as it appeared by the pleadings, that the premises in question were incumbered by mortgages, the holders of which were not parties to the suit, the court could not proceed to a determination of the action or grant the relief prayed for by the plaintiff, until such incumbrancers were made parties thereto; which objection, as to defect of parties, the court overruled, giving as a reason for overruling the same, "that this was simply an action of trespass, coupled with an application for an injunction under the statute of 1858; that the mortgagees were not necessary parties, and that the incumbrances could in no wise affect the right of the plaintiff to recover, or the amount of his recovery," to which decision the defendant then and there excepted. The plaintiff then introduced proof of title to the lots and land described in the complaint, and evidence tending to prove the other matters in the complaint alleged. The defendant then offered to read in evidence the three mortgages mentioned in the answer, and also another mortgage, executed by the plaintiff to one Walbridge, on the said eleven acres and certain other property, dated August 7th, 1857, for the sum of $1,200; to the reading of which mortgages the plaintiff objected, and the court sustained the objection, and the defendant excepted. The finding of the court as to the damages sustained by the plaintiff, was as follows: "That the value of said elev H Jan. Term, 1860. DAVIS V. THE LA CROSSE & MISSISSIPPI of RAILROAD Co. en acres of land, at the time the railroad track was graded As to the other material facts alleged in the complaint, the finding of the court was in favor of the plaintiff, but it does not seem necessary to state it at further length. The court found as conclusions of law, "that the La Crosse and Milwaukee Railroad Company was guilty of trespass in grading and laying the said railroad track through the said land and premises of the plaintiff, and running locomotives and trains. of cars over the same; that they are liable to a judgment in this action for the amount of the damages above found, together with interest to this date, amounting in all to the sum of $1,498; that under and by virtue of the statute in such case made and provided, the said La C. & M. R. R. Co, its officers, &c., and said M. & M. R. R. Co., its officers, &c,, are liable to be enjoined and restrained from running cars or locomotives over the said real estate of the plaintiff, until such damages, &c., with the plaintiff's costs in this action, are paid to the plaintiff." To each finding of facts and conclusion of law, the defendants excepted. Judgment was entered in accordance with the said finding of facts and conclusions of law. Emmons, Van Dyke & Hamilton, for appellant: I. The circuit court was manifestly in error in supposing that this was an action of trespass. If this be an action of trespass, then, notwithstanding the plaintiff has recovered a judgment commensurate in amount with the whole value of the land taken, and the damages to adjacent lands, upon the et al. 1860. DAVIS V. & MISSISSIPPI et al. Jan. Term, notion, as the whole case shows, that the occupation gained by the trespass was to be continued and perpetual, he may, nevertheless, still maintain ejectment, for there is no rule THE LA CROSSE that a recovery and satisfaction for trespass to the realty, RAILROAD CO. Works a change of title, as in trespass or trover for personal property. The allegations of the complaint, the prayer for relief, and the statute upon which the action is professedly based, show that the object and scope of the action is not the recovery of damages as for a technical trespass quare clausum fregit, but to establish the measure of compensation to which the plaintiff is entitled, by reason of the taking and appropriation of his land to the exclusive and perpetual use of the railroad company; such compensation as, when made to the parties thereto entitled, would vest a title in the corporation. We submit that this action, if at all maintainable, can be so only as one in its nature upon an implied assumpsit, springing from the duty of the corporation to make just compensation for the property which it has taken for pub lic use. II. The present action cannot be maintained. The charter of the La C. & M. R. R. Co. provides a mode and means of ascertainment of damages in such cases, and the statutory remedy thus given excludes all other remedies. Redfield on Railways, 173, § 19 and notes; id., 157; Pierce on Am. R. R. Law, 168, and note 1; id., 230; 1 Am. Railway Cases, 162, and note 1, p. 166. [Counsel here cited the original charter of the company, and various other statutes, for the purpose of showing that there was an existing statutory remedy open to the plaintiff when he commenced this suit.] III. There is a fatal defect of parties in this case. The premises, for the taking of which compensation is sought, were, as appears by the pleadings, largely incumbered by mortgages. Evidence of the existence and amount of the mortgages, was offered by the appellants, and rejected by the court below, for the reason that it was "simply an action of trespass." Call the action what you will, it is, in its nature and consequences, a proceeding to condemn the estate to public use, upon satisfaction of the recovery; and because the incumbrancers by mortgage are interested in the question 1860. DAVIS V. & MISSISSIPPI RAILROAD Co. et al. of condemnation, they are proper parties; and because the Jan. Term, recovery is to be for the damage to both estates, the legal as well as the equity of redemption, and because the mortgagees would not be otherwise bound, they are necessary parties; THE LA CROSSE and the appellants have a right to demand, before they are compelled by the judgment of the court to pay compensation for right of way, that all parties interested in such compensation, or who may be entitled thereto, shall be brought in, that they may become estopped by the record from setting up hereafter the same claim. Upon this point counsel cited, Hall vs. Nelson, 14 How. Pr. R., 32; Denton vs. Nanny, 8 Barb., (N. Y.) 618; Kidd vs. Dennison, 6 Barbour, 9; Fitchburg R. R. Co., vs. Boston & M. R. R., 1 Am. R. Cases, 526-7; Davidson vs. Boston & M. R. R., id., 542; Scott vs. Nicoll, 3 Russ., 476. Alva Stewart and I. Holmes, for respondent, contended, that by the statutes in force, the railroad company was the only party that could procure the appointment of commissioners, or apply for the assessment of damages; that nothing could be done by the person whose land was taken, until the company took the initiative; that the mortgagees were not necessary parties; that the court could determine the controversy between the parties before it, without prejudice to the rights of others; that after the foreclosure, neither the mortgagee nor any other purchaser could maintain an action. for the damages sought to be recovered in this case, and if, in the meantime, an easement had been acquired in the land, they would take it subject to such easement, citing Rev. Stat., 1858, p. 715, §§ 18 to 22 inclusive; 15 Conn., 556; 15 John., 205; 14 id., 213; 11 id., 538; 4 id., 42; 5 Iredell Law R., 306; 2 Am. R. Cases, 415; Story's Eq. Pl., § 72. They also contended that the objection for want of parties was not properly raised; that it is not enough to make a statement of facts in the answer which might show a want of parties, but the answer should distinctly specify the ob jection; the language of the statute being, that "the objec tion may be taken by answer;" and finally, that whatever view might be taken of the other questions in the case, the |