The first error assigned for reversing the judgment is, the overruling of the objection to the admission of any evidence under the complaint. The objection was founded on the assumption that the statute remedy is exclusive, where the landowner waives his right to prevent the occupation of his land, and elects to proceed for the recovery of damages, or compensation. The complaint states a cause of action for trespass to land in a public street, adjoining the plaintiff’s premises, and there is no fact in the case from which a waiver of any legal right on the part of the plaintiff can be inferred. It is true he did not resort to his remedy by injunction to prevent the company from laying its track on his land, in the .street, as he might have done; but this is all. The case is not distinguishable in principle, or in its facts, from that of Sherman v. The Mil., Lake Shore & Western R’y Co., 40 Wis., 645. There it was held, in accordance with the previous decisions of this court, that if a railroad company take possession of land for which it is liable to make compensation, without the consent of the owner, and without having ascertained *193and paid tlie compensation under tlie process given by tbe statute, it is a trespasser, and liable in an action of trespass. In that case, as in tbis, tbe company bad occupied and used a public highway adjoining tbe plaintiff’s property, for its track. Tbe decision seems fully to meet tbe position taken here, that tbe statutory remedy is exclusive, and that tbe plaintiff cannot maintain tbis action. Tbe plaintiff owns tbe fee to tbe center of tbe street, subject to the public easement; and, if tbe company has unlawfully encroached upon bis land in tbe street, or appropriated it for tbe use of its track, be can resort to bis legal remedy for redress. Tbe learned counsel for tbe company made an ingenious argument to show that the doctrine of tbe Sherman case should not be applied to tbis; but be failed to convince us that there was any valid reason for making a distinction in tbe cases. We do not deem it necessary to follow bis argument in detail on tbis point, and dismiss it with tbe remark, that it presented no new view of tbe question involved. There is no fact or circumstance in tbe case which will, or should, take it out of the rule of the previous cases decided by tbis court; nor was there any consideration advanced, drawn from tbe railroad legislation, which tends to weaken our confidence in tbe correctness of those decisions. Tbe evidence shows, beyond question, that tbe company occupied tbe street with its track without the consent and against the protest of tbe plaintiff; and, though he did not attempt to prevent such unauthorized occupation by an injunction, there is no ground for saying that he has waived or lost any legal remedy by delay. If tbe company has encroached upon his land, violated bis rights, by laying its track in tbe street in tbe manner it did, be is entitled to recover such damages as he has sustained by such unlawful acts.
Numerous exceptions were taken on tbe trial to tbe rulings of tbe court admitting or excluding testimony, some of which are relied on here for a reversal of the judgment. Time would hardly suffice to notice these various exceptions; nor is it im*194portant that we should do so, in view of the result we have reached on the question of damages. The action, as we have observed, is for a continuing trespass upon the land of the plaintiff in a public street. It is not a proceeding for ascertaining the amount of compensation the company should pay for property taken for the use of its road. It is necessary to keep in mind the distinction between the two proceedings, when considering the question of damages.
The answer admits that the track was laid in the street, in front of the plaintiff’s lots, encroaching upon his premises six inches. The evidence in the case strongly tends to show that the track extends along the center of the entire street, and that the main switches of the station are located about sixty, feet north of the north line of the premises, and others, to a great number, branch off from the main line northward. There was considerable switching done in the street in front of the premises; that is, engines and cars were frequently moving back and forth on the street, making up trains, and were often left standing on the track at that place. The track was some inches above the surface of the street, and was ballasted from time to time; but there was more or less difficulty in teams crossing the track from one side of the street to the other.
At the time of the building of the road, and ever since, the plaintiff has been in the actual occupation of the premises, having the same inclosed, and having his residence, a bi’ew-ery and other improvements thereon. It was claimed by the plaintiff, that, by the construction and operation of the rbad in the street in the manner it was operated, and by reason of the noise, fire, smoke and dangerous motion of the cars and engines, the railroad became, as to his premises, a private nuisance, rendered the use and enjoyment of his property disagreeable and less valuable than it would otherwise have been, deprived him of the use and benefit of the street as a public highway, increased the danger to his buildings from fire, and *195greatly impaired tire value of tire premises, and the annual income therefrom.
In constructing its 'track upon the plaintiff’s land without his consent, and without making compensation, the company was clearly a wrong-doer, and is liable for all the certain, direct and natural damages resulting to the plaintiff from its unlawful act. The damages recoverable in the action are, of course, for past injury to the freehold and possession; that is, the pecuniary loss which the trespass had caused the plaintiff in the use and enjoyment of his property when the suit was commenced. Laying out of view collateral questions, for the purposes of this case it seems to be sufficiently accurate to say, that the measure of damages would be the difference between the annual rental value of the premises with the railroad track where it was, and the road operated as it was, and what the rental value of the premises would have been had not the road been upon his land.
The counsel for the company argued that the plaintiff should recover such damages only as resulted from the six inch roadbed encroachment upon his premises, or such damages as the plaintiff sustained by reason of the operation of the road on that portion of the street lying west of the center line thereof, and in front of his premises. If by this it is meant that the plaintiff could recover only a fractional part of the damages, which the construction and operation of the road worked to his premises, a bare statement of the proposition is sufficient to show its unsoundness. A railroad is an entire thing, and it is impossible for any human intelligence to separate the loss or injury which its operation causes; apportioning so much to one portion, and so much to another. Eut we suppose the plaintiff was entitled to recover for all the loss which he had sustained by reason of the trespass of the company, and in consequence of the road being operated on his land, according to the rule above stated,
To the greater portion of the able and discriminating charge *196of the court below, defining what were actionable damages, no valid objection can be taken. The charge, including the instructions given at the request of the respective parties, is somewhat lengthy, and will not be commented on in detail. In one respect, however, the charge, as we understand it, is misleading and erroneous. ¥e refer to the strong implication in the charge, if not the direct ruling, that the plaintiff was entitled to recover, as damages consequent upon the trespass, the difference between the value of the use of the premises with the railroad as it was, with all its inconveniences, and the value of the use with the railroad where it was, without such inconveniences. If this is the meaning of the charge, it is obvious that the jury might have assessed double damages, or more damages than the wrongful act of the defendant caused the plaintiff; for this rule would more than make good the plaintiff’s loss, since it gives him all the benefits to his property resulting from the road, if any there were. It is plain that the road might possibly enhance, for some purposes, the business advantages of his property, rather than depreciate its rental value. If so, to that extent the trespass would work the plaintiff no harm.
We think the charge is fairly open to this criticism upon it, more especially in view of the refusal of the court to give the eighteenth special request asked on the part of the defendant, •which was, in substance, that the damages could not exceed the difference between the annual rental value of the property if there were no railroad on the street, and its annual rental value as the property was situated, with the railroad constructed and operated as it was. This instruction seems to us substantially correct, and should have been given. As applied to the facts of this case, the instruction would require the defendant to make full compensation for the actual loss which the plaintiff had suffered by its wrongful interference with his property. We do not think that this rule was given by the court in its charge.
*197Before taking leave of the case, we must express our obligations to the counsel on both sides for the very able manner in which the questions involved were discussed by them, and the intelligent way in which the authorities bearing on those questions are collated and presented in their briefs. Ve have only found it necessary to notice a very few of the points argued by them; but still'we were so'greatly aided in our examination of the case by their full and exhaustive arguments, that we felt that this acknowledgment was due them.
Eor the error in the charge above referred to, there must be a new trial.
By the Court. — The judgment is reversed, and anew trial awarded.
A motion by the respondent for a rehearing was denied.