The following opinion was filed at the January term, 1871:
Oole, J.
We are unable to see any error in this record which could possibly have prejudiced the plaintiff. The decisive fact in the case is, that the deed to the railroad company was upon record before any purchaser of the various lots received Ms deed from Kimball. True, Thill, under whom the defendant Fountain claims, received his contract and went into the actual possession of his lot in September, 1865. And, although the railroad company had not then put its deed upon record, yet it was in possession of the premises conveyed by Kimball in 1861, and Thill was undoubtedly chargeable with notice of the rights of the company; and when Olmstead received his deed in December, 1867, the railroad deed was upon record, and his lot was described as bounded by a line “ commencing on the east line of Appleton street and one hundred feet north of the Chicago and Northwestern railroad," etc. Thus, in the description of his lot, there was direct refer*413ence to tbe lot owned bj tbe railroad company, and be was bound to know where tbe north line of tbe company’s lot was. It is said that when Tbill went into possession, be fenced bis lot, bounding it on tbe south by a fence which bad been made by tbe railroad company. Suppose be did, it probably would not be claimed that at tbe time of tbe execution of bis contract in September, 1865, be bad no notice of tbe prior unregistered deed of tbe railroad company. He was bound, therefore, to ascertain where tbe north line of tbe railroad lot was, and whether this fence was on tbe line. And certainly all subsequent purchasers, who bought after tbe railroad deed was upon record, were bound at their peril to find out where tbe north line of tbe railroad premises was. If they chose to act on tbe assumption that tbe old railroad fence was on tbe north line of its lot, they could do so; but this would not conclude tbe company, or in any way affect its rights. There is no question of adverse user in the case. But the simple question is, Was the railroad company estopped from claiming to its real boundary line on tbe north, notwithstanding this fence ? And upon that point it seems to us there is hardly room for argument. Eor it would be a very unsafe doctrine to establish, that a person, by neglecting to fence all the land he owns, forfeits the title to the unenclosed portion. These parties doubtless all supposed the old railroad fence was on the north line of its lot. In this they were simply mistaken, and they must abide the consequences of this mistake. The railroad deed, as we have said, was upon record, and all persons who had any interest in the matter could readily ascertain what land had been conveyed to the railroad company. This probably would have involved the necessity for a survey, because, when the railroad deed was executed, Kim-ball had not made his addition to the city of Appleton, and tbe land in that deed could not be described by lots and blocks. But there surely was no difficulty in ascertaining the land conveyed to the company, and the north line of its lot. And, under the circumstances of this case, there is no doubt that third per*414sons were chargeable with constructive notice where it was. This being so, it decides this case, and a consideration of other questions becomes immaterial.
By the Court. — The judgment of the circuit court is affirmed.
The appellant having moved for a rehearing, the following opinion was filed at the June term, 1871:
Cole, J.
On the motion for a rehearing, it is insisted that the plaintiff was entitled to recover the value of the dwelling house. The action was for a trespass quare clausum, and to recover the value of this dwelling house removed from the close of the plaintiff. It is very apparent, however, as above stated, that the plaintiff did not own the land upon which the dwelling was erected, although it is doubtless true that Daniels, under whom the plaintiff claims, erected this building under a mistake as to the proper boundaries of his lot. But neither the defendant nor his grantors were in any wise responsible for this mistake as to the true lines. ' They were all in error in assuming that the old fence built by the railroad company was on the north line of its lot. The defendant did nothing to mislead the plaintiff, nor any one through whom he claims. True, Thill knew that Daniels was erecting this house. But he was as ignorant as was Daniels himself as to the true boundaries. But the railroad deed was upon record at this time, and both were equally chargeable with notice of the property conveyed to it. They had equal means of ascertaining where the lines of their respective lots were. And when Thill saw Daniels building this house, he had no actual knowledge that it was upon his land. He therefore gave no notice of his claim to the land, because he did not know that he owned it. This being so, upon what principle can the plaintiff recover for the value of the house ? Possibly if the defendant had brought an action to recover possession of the lot upon which the house stood, the plaintiff might have recovered its value under our betterment law, R. S., ch. 141, secs. 80 etseq. Or if for any reason the *415defendant bad invoked tbe aid of a court of equity in support of bis rights, possibly be would bave been compelled to pay for tbe improvements made by tbe plaintiff or bis grantors upon tbe land. Tbe evidence shows that tbe defendant was in tbe peaceable possession of tbe lot upon which tbe bouse stood, and when tbe plaintiff went there last November to forbid him from moving tbe bouse, tbe defendant ordered him off tbe lot. So tbe defendant obtained possession of tbe lot in some way peaceably,' and without resort to legal proceedings of any kind. And tbe plaintiff now seeks in this action a judgment for tbe value of tbe dwelling bouse. We do not see bow be can bave such a judgment, without introducing a new principle into tbe law of this state. In Putnam v. Ritchie, 6 Paige, 390, Chancellor Walworth says that be was unable to find any case, either in this country or in England, wherein a court of equity even bad assumed jurisdiction to give relief to a complainant. who bad made improvements upon land, the legal title to which was in tbe defendant, where there was neither fraud nor acquiescence on tbe part of tbe latter after be bad knowledge of bis legal rights. And if a court of equity would not go to tbe extent of decreeing compensation for tbe bouse upon tbe facts, bad tbe plaintiff invoked its aid, it is difficult to perceive upon what principle a court of law could give him a judgment for its value in this action. All tbe parties seem to bave acted under tbe mistaken belief that tbe old railroad fence was on the north line of its lot, although tbe means of information as to tbe extent of that lot were within their reach and equally accessible. We think tbe motion for a rehearing must therefore be denied.
By the Court. — Motion denied.