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tion of the court was rested upon the ground that a court of equity would compel a railroad corporation to perform the plain statutory duty of restoring the highway which it had invaded to its former state of usefulness, as a condition to using it for the purposes of its road-bed. This duty is imposed by statute in plain and positive language, and a railroad corporation has no warrant in law to invade a highway with its track without complying with the law which grants the privilege for it to do so. It is contumacious and wrongful conduct for the officers of a railroad corporation to occupy a public highway with its track, practically destroying the street for purposes of public travel, and then defy or disregard all law and all authority invoked to compel them to repair the wrong which they had done the public. The courts would be impotent indeed if they could not correct such flagrant invasions of public right.

The legislature has seen fit to authorize a railroad company to construct its track across and along a highway, subject to the express condition that it restore the highway to its former state of usefulness, or that it does not materially impair the highway for public travel, and maintains it in that condition afterwards. But the duty to restore and keep in repair is coupled with the privilege to use and occupy the highway for its track; and if the corporation will not perform its duty, it should not enjoy the easement granted. These considerations are in accord with the most obvious principles of justice and public rights.

The slightest attention to the facts stated in the complaint will convince any one that the defendant company has very materially impaired and injured Division Street by the manner it has built its track therein. In constructing its road in that street, it is alleged that it has obstructed the same by raising an embankment in the street in many places eighteen inches high above the grade as it was before the road-bed was built, and in other places varying from that height to a few inches, and maintains such embankment at that elevation above the grade. It is alleged that it is impracticable to drive over the railroad track between one end of a long block and another; that it is impossible to turn with an ordinary team and vehicle upon the street, or to drive in and out of the lots and premises along the street with teams and heavy loads. In view of these facts, it is idle to allege or say that the street has not been nearly destroyed by the construction of the rail

road therein; certainly, its usefulnessas a public street has been materially impaired. The railroad company has refused, though requested by the officers of the city, to put the street in a condition for public use as a highway. These, with other facts stated, present a case for the exercise of the jurisdiction of a court of equity, by way of mandatory injunction, to compel the railroad company to perform its duty, within the doctrine of the Jamestown case.

It is said the court should not exercise its extraordinary powers by way of mandatory injunction to compel the railroad company to restore the street for public use, because the city itself may do the work, and recover the expense of doing it of the company. Such an objection surely comes with bad grace from the railroad company, insisting that it should not be compelled to restore the street, because the city has power to do the work which the statute requires it should do. The acts of the railroad company constitute a nuisance, for it has no authority to use the street for its road-bed without restoring it to its former condition. It is no excuse for its default. to say that the city may make it suitable for public use. The railroad company should either abandon the street for the use of its track, or restore things to their former condition, as the statute requires.

It is said, before the city calls on the railroad company to restore the street, it should establish a permanent grade thereof. But it is no concern of the company whether the city has established the grade of the street or not. Its duty is to repair the injury it has done the highway. When the company has restored, as near as possible, Division Street to its former state of usefulness, it will have fulfilled the condition upon which it has the right to occupy it with its track. A mandatory injunction would seem to be the only adequate remedy to redress the wrong to the public rights, and is fully warranted by the facts stated in the complaint.

The order of the circuit court overruling the demurrer to the complaint is affirmed, and the cause remanded for further proceedings according to law.

RAILROAD COMPANIES HIGHWAYS. The right of a railroad company to interfere with a highway is coupled with the duty to make it as safe as it was before the interference: Note to Palatka etc. R. R. Co. v. State, 11 Am. St. Rep. 404; and it is proper to compel a railroad company by a writ of mandatory injunction to perform its duty with respect to highways disturbed by it: Jamestown v. Chicago etc. R. R. Co., 69 Wis. 648.

AM. ST. REP., VOL. XVII. - 12

MCKINNON v. VOLLMAR.

[75 WISCONSIN, 82]

ACTION FOR MONEY HAD AND RECEIVED IS THE PROPER REMEDY TO RECOVER THE CONSIDERATION PAID by the plaintiff to the defendant for a conveyance of land, if the circumstances are such that the plaintiff has the right to rescind the sale, and has done everything on his part neces sary to such rescission. RESCISSION BECAUSE WRONG LANDS WERE POINTED OUT. — - If intending purchasers are proceeding, as they suppose, to examine land offered for sale, and an agent of the vendors causes a wrong tract to be pointed out, and a purchase is thereby induced, the vendees have a right to rescind the sale, and recover the purchase-money, though the vendors were not aware of the fraud of their agent in pointing out the wrong land. SUBAGENT RIGHT OF AGENT TO APPOINT.

An agent may appoint a subagent to do acts in the course of the agency which do not call for the exercise of judgment or discretion, and which are purely executive or ministerial, and the principal is bound by the acts of such agent. Therefore, if the duty of agent is to point out land which the principal desires to sell, and a subagent, selected by the agent, directs a third person to point out lands which the subagent knows are not the lands of the prin cipal, the latter is bound by the wrongful act of the subagent, and must restore the consideration paid for the conveyance of the land, when such consideration was paid under the belief that the lands conveyed were the same as those pointed out.

RESCISSION OF SALE FOR MISREPRESENTATION. - If a vendor represents that a tract of land contains a specified large quantity of pine timber, when in fact it has upon it little or no timber, the vendee is entitled to rescind the sale, if the circumstances of the case excused him for not verifying the accuracy of the statement, though the vendor believed it to be true. ACTION for money had and received. At the trial, it appeared that the defendants were the owners of a two-hundredacre tract of land, which they had purchased in 1884, upon the faith of the sworn statement of one Greeves and one Goodwin, that they had personally examined the land, and found thereon two million two hundred thousand feet of pine. The defendants, after their purchase, authorized one Seibert to sell the land for them, and he thereupon opened a correspondence with the plaintiffs. After several letters had passed, one of the plaintiffs went personally to have an interview with Seibert and the defendants. The defendants showed the estimates of pine on their land before mentioned, and they also asserted that there were at least two million feet of pine timber thereon. One of the plaintiffs started in company with Greeves to examine the land. Before they reached the land, they were were joined by one Kirwin, whom Greeves hired, and whom he sent to point out the land, but Kirwin not being personally acquainted with the land, Greeves in

structed him to show a particular parcel of land which Greeves knew was not the land owned by the defendants, and which they were seeking to sell. Kirwin innocently did as he was directed by Greeves, and showed a tract of land about one mile distant from the defendants' land, and heavily timbered with pine. The plaintiffs, believing the land shown them was that belonging to the defendants, agreed to purchase it for the sum of eighteen hundred dollars, and subsequently paid the entire purchase-money, and received a conveyance. Shortly after the making of this conveyance, the plaintiffs discovered the fraud which had been practiced upon them, and executed and tendered a reconveyance to the defendants of the land conveyed by them, and demanded the return of the purchase price. The jury to whom the case was submitted specially found that Seibert employed Greeves to show the land; that Greeves thereupon employed Martin Kirwin; that Kirwin showed lands other than those actually sold by defendants to plaintiffs; that the plaintiffs, acting on the faith of the information received from Kirwin, purchased the lands; that Kirwin, in what he did, acted by mistake, and that Greeves directed Kirwin to show the wrong lands, and that the plaintiffs purchased the lands believing that they were the same lands shown to them by Kirwin, and that the defendants had made a statement to plaintiffs before the sale as to how much pine timber there was on the land, on which statement the plaintiffs relied in making the purchase; that the correct description of the lands was furnished plaintiffs before they went to examine them; that there was no pine timber thereon, and that the sale of the lands was made under a mistake on the part both of plaintiffs and defendants; that plaintiffs had been shown the wrong lands. Judgment was entered in favor of the plaintiffs upon the verdict, and the defendants thereupon. appealed.

Cate, Jones, and Sanborn, for the appellants.

Jenkins and Jenkins, for the respondents.

LYON, J. 1. At the close of plaintiffs' testimony, the defendants moved for a nonsuit. The motion was denied. This ruling is claimed to be erroneous for the alleged reason that the only remedy of the plaintiffs is by a suit in equity, and that, under the facts of the case, an action for money had and received, to recover the consideration paid for the land,

cannot be maintained. The reason thus assigned is unsound. It might be otherwise were this an action to rescind a conveyance of land, or to compel the execution of one. But this is not such an action. The only conveyance involved has already been rescinded, so far as the plaintiffs could rescind it, by the tender to the defendants of a sufficient conveyance of the land in question, and the deposit of such conveyance in court for the defendants. The plaintiffs have done all they can do to place the parties in statu quo; and all the defendants have to do to accomplish that result is to accept such conveyance and refund the purchase-money. There is nothing in the case which calls for the exercise of the peculiar and extraordinary jurisdiction of a court of equity. The controlling question in the case is, whether the defendants ought to refund the consideration they received for the land. If they ought, such consideration can be recovered in an action for money had and received: Ela v. American M. U. Ex. Co., 29 Wis. 611; 9 Am. Rep. 619. We conclude, therefore, that if the plaintiffs are entitled to recover such consideration, they may recover the same in this form of action.

2. We now proceed to consider whether the findings of the jury are supported by the testimony. That there is sufficient testimony to support most of the findings is too clear for argument. A few of them only may be open to some doubt as to whether the testimony sustains them. These will be briefly noticed.

The sixth and seventh findings are to the effect that Greeves directed Kirwin to show Derfus the wrong land, and that he did so by mistake; that is to say, in the belief that he was showing defendants' land. The finding is not that Greeves was mistaken in that particular, and it is quite evident, from the testimony, that he was not. In this view of the findings, they are supported by the testimony.

The thirteenth finding is, that there is no pine timber on the lands sold by defendants to plaintiffs. This manifestly means no merchantable pine timber. There is considerable testimony that such is the fact.

The fourteenth finding is, that the purchase and sale of the land was made under a mistake on the part of all the parties, in that they supposed Derfus had been shown the land conveyed by defandants to McKinnon and Redmond. It seems to us that this is the unavoidable inference from all the testimony. It certainly was a mistake on the part of plaintiffs;

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