pany for electric railway purposes between January 16 and February 21, 1906, in fulfillment of options previously acquired, as will be found more fully stated in the previous case. In the second of the present cases, the Milwaukee Light, Heat & Traction Company filed its petition March 5, 1906, seeking to condemn all the parcels in the disputed strip, as well those upon which it had options as those which had been deeded to the Milwaukee Northern Railway Company. The evidence in the two cases is substantially identical, and the two cases were considered and decided together by the trial judge. The fundamental facts as to the organization of the two companies and the acts of each with reference to surveys, the procuring of options and franchises, and other steps up to February 15, 1906, are substantially the same as the facts stated in the preceding case. In addition, it was shown in the present cases that on the 21st day of February, 1906, at 11 o'clock a. m., and prior to the filing of its petition herein, a meeting of the board of directors of the Milwaukee Northern Railway Company was held, at which the route theretofore surveyed under Mr. Walker's direction through Ozaukee county, including the disputed strip, was formally adopted as the route of the company's line in that county, and the attorneys of the company were directed to prosecute condemnation proceedings to acquire the six parcels of land which had not been purchased, and which are the same parcels described in its petition for condemnation filed later on the same day. The court found, in substance, in both cases, that the Milwaukee Light, Heat & Traction Company did not prosecute its survey and staking of its route in good faith or with due diligence, and that the final location of its route on January 16, 1906, was not made in good faith for the purpose of building a road, but for the purpose of preventing the Milwaukee Northern Railway Company from building a rival line; that the last-named company in fact surveyed, staked out, and located its route over the disputed strip prior to September 1, 1905, and is financially able to build its railroad on said route, and intends in good faith to do so; and that the Milwaukee Northern Railway Company is entitled to condemn the six tracts of which it seeks condemnation, while the Milwaukee Light, Heat & Traction Company is not entitled to condemn any of the disputed strip. From orders made in accordance with these findings, the Milwaukee Light, Heat & Traction Company appeals.

Clarke M. Rosecrantz, for appellant. Winkler, Flanders, Bottum & Fawsett, for respondent.

WINSLOW, J. (after stating the facts). As appears by the statement of facts, these cases are companion cases to the immediately 112 N.W.-43

preceding case, and involve that part of the same general right of way which lies in Ozaukee county immediately north of the disputed right of way in Milwaukee county. The controlling facts as to priority of location are substantially the same as in the previous case, and hence the decision must follow the decision in that case. It was found by the court in the present cases that the Milwaukee Light, Heat & Traction Company did not make its survey with due diligence nor in good faith, and that the final location of its route January 16, 1906, was not made in good faith for the purpose of building a road, but for the purpose of preventing the Milwaukee Northern Company from building a rival line. Whether the finding of lack of good faith in the location of its line is justified by the evidence we find it unnecessary to determine. in any event, there was sufficient evidence to justify the conclusion that there was no definite intention in good faith to construct a line prior to the resolution of January 16th; and, as the Milwaukee Northern Company had previously made a completed location over the disputed strip, it had acquired priority of right.

Order affirmed in each case.

TIMLIN, J., took no part.

MEYERS et al. v. WISCONSIN CENT. RY. CO.

YOUNG v. SAME.

(Supreme Court of Wisconsin. June 20, 1907.) 1. EJECTMENT-RIGHT OF ACTION-TITLE OF

PLAINTIFF.

Plaintiff in ejectment must recover on the strength of his own title, and not on the weakness of defendant's title.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Ejectment, § 18.]

2. SAME-SUFFICIENCY OF EVIDENCE.

In an action of ejectment against a railroad, evidence examined, and held to show that the land in question was within defendant's right of way as located and operated at the time the deed to plaintiff was executed, and that plaintiff was not entitled to judgment.

[Ed. Note. For cases in point, see Cent. Dig. vol. 17, Ejectment, § 279.]

Appeal from Circuit Court, Clark County; James O'Neill, Judge.

Action by August J. Meyers and another against the Wisconsin Central Railway Company, and by Albert H. Young against the same defendant. Judgment for plaintiffs in both actions, and defendant appeals. Judg ment in both cases reversed, with directions to render judgment for defendant.

These are ejectment actions brought by the plaintiffs, respectively, to recover two parcels of land in the village of Abbotsford, Clark county, which are claimed by the de

continuous

of Abbotsford was subsequently laid out and built. In that year the Wisconsin Central Railroad was laid out through said quarter section crossing the same in a general north and south course, but slightly curving to the west. The map shows sufficient of the line of the main track as so laid out to show its relation to the disputed tracts. On December 26, 1879, Berg deeded to the Wisconsin Central Railroad Company, to whose rights the defendant has succeeded, a strip of land 150 feet wide for a right of way being 75 feet in width on each side of the center line of the main track as laid out. The east line of this strip is marked "75 foot line" on the map. May 17, 1880, Frederick Abbot became the owner in fee through mesne conveyances from Berg of the entire quarter section, except the right of way aforesaid. In October of the same year Abbot made and recorded a plat of the village of Abbotsford. By this plat he laid out nearly all of the quarter section lying east of the railroad right of way into lots and blocks. The west line of the plat, however, did not coincide with east line of the right of way, but left a strip between. While the map given above does not show the whole plat, but only the southwest part thereof, sufficient is shown to make clear the relation of the platted lands to the right of way. The west line of the platted lands was shown on the plat as a straight line running northwesterly and constituting the west line of First street, being the line marked "West line of plat of Abbotsford" on the map given above. West of this line of the platted land was drawn a dotted line which (according to the scale of the plat) was 150 feet east of and parallel with the center line of the defendant's right of way. This line was not explained by any lettering on the recorded plat, but it is marked "150 foot line" on the map here given for convenience of identification and reference. No 75 foot line was marked on the recorded plat, but the main track of the defendant's railroad was shown, as also its depot and depot grounds and a dotted line 100 feet west of the main track. There was thus left a strip 150 feet wide east of the main track, and between this strip and the west line of the plat a long triangular piece of land about 100 feet wide on the south and tapering to a point north of Oak street, where the west line of the plat became tangent to the 150 foot line. No distances were marked on the recorded plat outside of the land actually platted, nor was there any lettering except the words "Depot Grounds," "Hotel," "Platform," and the letters, "W. C. R. R.," indicating the main track of the railroad. Apparently the lines outside of the platted lands were intended simply to delineate the position of the railroad with reference to the proposed village. In October, 1882, Abbot deeded to one Maguire a piece of land outside of the plat and between the west line of First street and the railroad right of way which

was described as beginning on the west line of First street on a continuation of the southern boundary line of lot 5 in block A of the plat running westerly along said continued lot line to the right of way of the Wisconsin Central Railroad, thence southerly, along said right of way, to the south line of the sec tion, thence easterly to the west line of First street, thence northerly, along said First street, to the place of beginning. In March, 1883, Abbot deeded to said Maguire a piece Immediately north of the last-named parcel and bounded on the north by a continuation of the southerly line of lot 6 of the plat, on the south by the land previously deeded, on the west by the railroad right of way, and on the east by First street. In 1883 or 1884 Maguire built a store on the southerly "disputed parcel," which extended easterly, so that a small portion of it stood on the parcel marked "Meyers & Chase." In June, 1885, Maguire deeded both parcels to one Roter, who thereafter conducted the store until it was burned a few months later. The description in Roter's deed was substantially the same as in the deeds to Maguire: the western boundary being the line of the railroad right of way. In 1886 Roter built a new store, but located it entirely on the parcel marked "Meyers & Chase," except that at the southwest corner it projected over on the "disputed parcel" about a foot and a half. Roter occupied this store until September, 1897, when he sold and deeded a parcel of land intended to include the store to the plaintiff Chase. This parcel was described as beginning at the southeast corner of the parcel marked "Meyers & Chase," running northwesterly along the west line of First street 69 feet; thence west to the "right of way of the Wisconsin Central Railroad as the same is now located and operated"; thence south, along said right of way, to Spruce street; thence east, along the north line of Spruce street, to the place of beginning. In July, 1900, Chase deeded to the plaintiff Meyers an undivided one-half of the same parcel under the same description. It will be observed that, if the right of way of the defendant as then "located and operated" was at the 75-foot line, the parcel deeded to Meyers included the disputed parcel in the Chase and Meyers action, while, if said right of way was at the "150-foot line," it did not. In March, 1899, Roter deeded to the plaintiff Young a parcel north of the Chase and Meyers parcel, which included the parcel marked "Young" on the map, describing its westerly line as the east line of the right of way of the Wisconsin Central Railroad "as the same is now located and operated." This deed included the north "disputed parcel" if the right of way was at the 150-foot line, but did not include it if at the "75-foot line." In October, 1897, Abbot deeded to the defendant all of the "150-foot strip" east of the center line of the main track of the railroad. Other facts in evidence relating to the use of the

disputed parcels will be stated in the opinion. The court made general findings in each case to the effect that the plaintiffs were the owners in fee of the disputed parcels claimed by them, respectively; that the defendant for more than a year prior to the commencement of the action had exercised acts of ownership over them and claimed title to them; that they were never occupied for railroad purposes; that the defendant had not adversely occupied them for 10 years; and that the plaintiffs were entitled to recover possession. Judgments for the plaintiffs in accordance with these findings were rendered, and the defendant appealed in each case.

Thos. H. Gill and Walter D. Corrigan, for appellant. F. M. Jackson and Marsh & Schoengarth, for respondents.

WINSLOW, J. (after stating the facts). It is a familiar principle in the law of ejectment that a plaintiff must recover, if he recover at all, by virtue of the strength of his own title, and not by virtue of the weakness of the defendant's title. Therefore the first inquiry logically is whether the plaintiffs have shown title to the disputed parcels. This question involves primarily the construction of the deeds from Roter under which the plaintiffs claim. If these deeds do not, when properly construed, convey to the plaintiffs any part of the disputed parcels, then they can have no recovery, notwithstanding the defendant's title may not be good. It will be observed by reference to the statement of facts that when Abbot conveyed to Maguire in 1883, and when Maguire conveyed to Roter in 1885, the western boundary of the land conveyed was described in the deeds as the easterly boundary of the right of way of the Wisconsin Central Railroad, but that, when Roter conveyed to the plaintiffs in 1897 and 1899, the western boundary of the lands conveyed was described as "the right of way of the Wisconsin Central Railroad as now located and operated." In view of the facts as to the occupation and use of the lands soon to be stated, the change in the description of the western boundary is very significant. Irrespective of any such facts, however, it is unquestionable that there is a very material difference between the two grants. The earlier grants undoubtedly extended to the east line of the land to which the railroad company had previously acquired title for right of way purposes, regardless of the question of occupation or use, but the later deeds, with equal clearness, limit the grants to the east line of land which was at that time located and actually operated as a right of way. They call for a boundary line which cannot be determined by courses and distances, but must be determined by proof of extrinsic facts, namely, use and occupation for right of way purposes, whether under good or bad title. This is

not an ambiguity in the deed, but simply a call in the deed like a tree or the bank of a river, which must be located by examination of the land itself. When the place is found, the boundary of the land conveyed is also found. The testimony must, therefore, be examined to see whether it shows that a definitely bounded strip of land was located and operated by the defendant as a right of way at the time the plaintiffs' deeds were made, and, if so, where the east line of that land was situated. The testimony is not entirely harmonious in details, but the essential facts are not in dispute nor uncertain.

The village of Abbotsford originally came into existence by reason of the building of the defendant's railroad and the establishment of a railroad station. The original grant of a right of way in 1879 was but 75 feet in width on each side of the center line. When Mr. Abbot, who was the land commissioner of the railway company at the time, platted the village in 1880, he seemed to consider that the right of way on the east side of the center line was 150 feet in width, at least it is so indicated on his plat. In 1883 the railway company caused a large map of its right of way and grounds in Abbotsford to be made, upon which the right of way on the east side of the center line was represented as 150 feet in width. This claim does not affect plaintiffs, as they were not informed of it, but it throws some light upon the subsequent acts of the railroad company. When Maguire received his deeds in 1882 and 1883, there were apparently no fences nor any clearly defined lines of occupation. He built his store largely upon the southerly "disputed parcel," and within the 150-foot line, but this was burned down in 1885. When Roter rebuilt in 1886, he changed the location of the store to the east, and built entirely upon the parcel marked "Meyers & Chase," except that a very small part of the southwest corner extended a foot and a half over the line. Roter testifies that he was told that the line was where the new store was built, and even then he got a few inches further west than he intended. He also testifies that he had an icehouse just north of his new store and on the 150-foot line, and a woodshed still further north, and that in 1892 he built a board fence nearly on the 150-foot line between the two buildings and that he continued the fence around the north and east side of his premises, thus practically inclosing the two parcels marked "Young" and "Meyers & Chase" on the map, and that he placed the fence upon the 150-foot line because he supposed that was the line of the right of way. At this time the plaintiff Meyers worked for Roter and knew of the building of the fence. Roter further testifies that at some time after the building of the new store (the exact date not being giv en) the depot agent of defendant came to him and claimed all the land up to the 150foot line, and in accordance with this claim

he moved off an old shed and also some old boxes which he had piled there. This apparently was in the year 1894. After this fo part of the 150-foot strip in the rear of either the Young property or the adjoining Meyers and Chase property was occupied by any buildings. It laid open, and was sometimes used to burn rubbish upon, and could be driven into from Spruce street on the south. The railroad company erected a new freighthouse and platform and icehouse in 1889 or 1890, as indicated on the map, and have since maintained them there. As will be seen, they are largely located on the east half of the 150-foot strip, a little north of the disputed tracts. After the building of these buildings all who wished to get freight from the freighthouse by team crossed the disputed parcels upon the driveway marked on the map. Roter used this driveway to get to the freight depot, and the plaintiffs Meyers and Chase have also used it, but all others who wished to get to the freight depot used it in common and without objection.

Prior to the building of the new freighthouse a number of sidetracks had been constructed on the east side of the main track, running north from the freighthouse for several blocks, and one of these sidetracks was for a long distance wholly on the east 75 feet of the 150-foot strip. Along the east side of this track, and on the east 75 feet, opposite block B on the map, a number of warehouses were built by permission or under leases from the company during the years immediately following the building of the freighthouse. There is some testimony that the railroad company piled ties and telegraph poles at times on the disputed parcels, but this is denied by other witnesses. The plaintiffs did not use it except to pass over when driving to the freight depot or to burn rubbish upon. In January, 1899, the railroad company presented to Meyers and Chase a lease of the small corner of the 150-foot strip occupied by their store, and Meyers signed the same without objection.

In view of the facts thus appearing relatIng to the condition and use of the disputed parcels of land at the time of and long prior to the time of the execution of the plaintiffs' deeds, there seems no doubt that the whole 150-foot strip was then occupied by the defendant as a part of its right of way, and consequently that the plaintiffs' deeds do not include and were not intended to include any portion of such strip.

In this connection, the allegations of the complaints in both actions are very significant and well-nigh controlling. These complaints were verified October 10, 1903, and they both allege that the defendant has unlawfully withheld possession of the premises in dispute for the past five years and more. This allegation takes the possession of the railroad company back to October, 1896, almost to the time of the execution of Roter's deed to Chase and prior to the execution of

Roter's deed to Young. There is no claim that the situation as to possession was in any respect different in September, 1897, from what it was in October, 1898.

Our conclusions are that the evidence shows without serious question that the parcels in dispute were within the defendant's right of way as located and operated at the time the plaintiffs' deeds were made, and hence that the plaintiffs were not entitled to judgment.

Judgment in both cases reversed, and actions remanded, with directions to render judgment in each case for the defendant, dismissing the complaint.

COURT-AMENDMENT OF PLEADING.

Action of trial court in amending complaint after evidence is all introduced, to make it conform to the proof, when such amendment makes no substantial change in the claim, will not be reviewed on appeal, unless an abuse of discretion is apparent. Held, under the circumstances surrounding making of such amendment in this case, no abuse of discretion appears.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3825-3833.] 3. MORTGAGES-DEED OR

EVIDENCE.

MORTGAGE-PAROL

An instrument in form a deed may be proved by oral testimony to be a mortgage between the parties and all others with knowledge of its purpose.

[Ed. Note. For cases in point, see Cent. Dig. vol. 35, Mortgages, § 98.]

4. LIMITATION OF ACTIONS-PAYMENT TOLLING STATUTE-EFFECT ON SECURITY.

Payment on the debt, or other acts which interrupt the running of the statute of limitations on the debt, also prevent the statute from running on the security.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 648.]

5. SAME MORTGAGE-PAYMENT BY HUSBAND -LIMITATIONS.

The assent of the wife is not necessary to an extension of the time of payment of a debt secured by mortgage on the homestead by the husband; and, without her assent, the husband can prevent the statute from running on the mortgage.

6. PRINCIPAL AND SURETY - EXTENSION OF TIME-NOTICE TO SURETY.

A wife who joins husband in the execution of a mortgage on the homestead, given to se cure his debt, does not thereby become a surety, and is not entitled to notice of an extension of the time for payment of the mortgage debt. 7. WITNESSES COMPETENCY-TRANSACTIONS

WITH DECEdent.

In an action to foreclose a deed given as security for debt, wherein the grantee, witness, and the heirs at law of the grantor, since deceased, are adverse parties, testimony of the