| Minn. | Feb 13, 1891
The stipulation of the parties for the purpose of the trial, that, if it be found that the railway company has not acquired a valid right of way 100 feet wide along the line of its road as constructed, the defendant applies for condemnation thereof, and agreeing upon the damages to be awarded upon such condemnation, was a waiver of any objection to the form in which the action was brought. But, aside from that, if the defendant has not acquired the right to maintain the railroad across the plaintiffs’ land, the actions are well brought under Gen. St. 1878, c. 34, § 33, which provides an action in the nature of ejectment where compensation for taking the land has not been mase. That action may, at the election of the company, be turned into a proceeding to condemn, and is intended to enable the land-owner to compel the railroad company to elect whether it will surrender the land or procure by condemnation the right to hold it. Of course, if the railroad company has, otherwise than by condemnation, a right as against the plaintiff to the possession of the land for the purposes for which it is using it, — as, for instance, by a contract with the owner, — the action cannot -be maintained. But by the express terms of the statute mere acquiescence of the owner in the taking by the company does not stand in the way of the action.
The contract set up in the answer gives the defendant no right to the land in controversy. That contract gave to the lessees of plaintiffs’ quarries the right to construct over plaintiffs’ land a railroad
Order affirmed.
Vanderburgh, J., took no part in the decision.