Mitchell, J.
The question presented on this appeal is whether a defendant railway company is entitled, under 1878 G. S. ch. 75, § 11, to a second trial of an action against it for the recovery of real property, where, in its answer, in addition to putting in issue plaintiff’s right of recovery, it also, under the provisions! of 1878 G. S. ch. 34, § 34, asks for an assessment of the compensation to be paid for taking the land for railway purposes, in case the plaintiff on the trial establishes his right to recover. We are compelled to the conclusion that this question must be answered in the affirmative. If the legal effect of a demand for such an assessment was to admit plaintiff’s right of recovery, or if, in its answer, the railway company admitted that right, so that the action became one pure and simple *160for an assessment of plaintiff’s compensation, it would really no longer be an action for tbe recovery of real property, and would not be within the spirit, at least, of the statute giving another trial in such actions. But such is not the effect of the defendant’s demanding an assessment of compensation, and such was not the tenor of the answer in this case. Tbe assessment was contingent upon plaintiff’s establishing his right to recover the land. That issue remained to be litigated the same as in any action for the recovery of real property. It was the foundation of the action. The provision for an assessment is one for the benefit of the defendant, so that, in case plaintiff succeeds, it may, at its option, pay the compensation, instead of surrendering the land. As was said in Koerper v. St. Paul & N. P. Ry. Co., 40 Minn. 132" court="Minn." date_filed="1889-01-30" href="https://app.midpage.ai/document/koerper-v-st-paul--northern-pacific-railway-co-7965920?utm_source=webapp" opinion_id="7965920">40 Minn. 132, (41 N. W. Rep. 656,) this is merely a qualification of plaintiff’s recovery, by which he obtains the value in lieu of the land itself. The fact that a defendant, in its answer, asks for this conditional relief certainly does not deprive the plaintiff, if defeated, of the right to another trial; and it would be inconsistent with the provisions of our statute on the subject to hold that one party had this right while the other had not. We find nothing in the statute indicating any legislative intent that by asking for this contingent relief a defendant waives or loses the right, which unquestionably he would otherwise have, to demand another trial. On the contrary, the last section of the act, (1878 G-. S. ch. 34, § 38,) providing that the action given by the act shall in all other respects, except as herein provided, be governed by the same rules of practice and procedure as to new trials, etc., as other actions brought for the recovery of real estate, seems to us conclusive on the question. Unless this refers to the right to another trial as given by 1878 Gr. S. ch. 75, § 11, it would be practically meaningless. The suggestion that this applies to such an action only where no demand for an assessment of compensation is made in the answer, finds no support in the language of the statute. Stress is laid upon a stipulation made in the trial court that the plaintiff at the commencement of the action was the owner in fee of the several 40’s described in the answer (of which the 100-foot strip in possession of defendant was a part) as amounting to an admission of plaintiff’s right of recovery, and hence rendering the action merely a proceeding for ascertaining plaintiff’s compensation. We do not think the stipulation goes *161that far. Plaintiff might be the owner of the fee, and yet the defendant the owner of an easement for railway purposes, entitling it to possession. See, also, Newell, Eject, p. 844, § 43; Hewitt v. Wisconsin River Land Co., 81 Wis. 546" court="Wis." date_filed="1892-03-22" href="https://app.midpage.ai/document/hewitt-v-wisconsin-river-land-co-8183913?utm_source=webapp" opinion_id="8183913">81 Wis. 546, (51 N. W. Rep. 1016.) It may be suggested that if the defendant is entitled to a second trial it is only of the issue as to plaintiff’s right of possession, and not of the assessment of compensation. There are several reasons why it seems to us that if defendant is entitled to another trial at all it must be of the entire case, but the mention of one is sufficient. The line of evidence on part of either plaintiff or defendant on a second trial cannot be anticipated, and, if plaintiff succeeds at all, it may be by establishing an entirely different interest or estate in the land from that established on the first trial, thus rendering necessary an assessment of his compensation on a different basis. The right to a second trial in actions for the recovery of real property is a relic of the fictions of the old common-law action of ejectment, which had their foundation, in part, at least, in the old feudal idea that the title to. real property is too sacred to be concluded by the result of one trial, or even one action, which, in my judgment, has no justification for its continued existence. It is also apparent that under the statute of 1875 (1878 G-. S. ch. 34, § 38) a railway company may be enabled to avail itself of this right to a second trial, ostensibly to retry the question of the plaintiff’s right to recover the land, but in reality merely for the purpose of securing a second assessment of the amount of compensation to be paid for taking the land for railway purposes. But we see no way of preventing this under the statute as it now exists.
(Opinion published 55 N.W. 928" court="Minn." date_filed="1893-07-14" href="https://app.midpage.ai/document/kremer-v-chicago-milwaukee--st-paul-railway-co-7967986?utm_source=webapp" opinion_id="7967986">55 N. W. Rep. 928.)
Order reversed.