WiNSLow, J.
The plaintiff in this case claims that the defendant, under its conveyances, possesses simply the right to lay its tracks and operate its cars over the center portion of a public street, with no right to substantially change the grade of such street; while the defendant makes the broad claim that it owns an ordinary railroad right of way covering the full width of the alleged street, and may change the grade at will, and make such use of the entire tract as is reasonably necessary in the operation of a steam railway, provided such acts are done in in a reasonably careful and workmanlike manner. This is the fundamental issue between the parties, and it naturally divides itself into two questions: first, what rights did the Motor Railway Company acquire under the terms of its deed of July 30, 1890? and, second, Has the defendant acquired any greater rights than those originally granted to the Motor Railway Company? These questions will be considered in the order stated.
1. The Motor Railway Company was a railroad corporation organized under the general law, and possessed the [563]*563right of eminent domain. Had it condemned the strip of land in Murray Hill now known, as Wells street, it would doubtless have acquired the right to exclusively use the whole width of the strip in any manner which, directly or - indirectly, contributed to the safe, economical, and efficient operation of its railroad, not interfering with the rights of the public or adjoining landowners. This would include the 'right to change the location or grade of its tracks. Lewis, Eminent Domain, § 584; R. S. 1878, sec. 1851. The defendant’s claim is, in substance, that the deed made by the Murray Hill Company to the Motor Company by its terms grants just such an estate or right; that, the plat of Murray Hill not having been recorded at the time the deed was made, the deed operated as a revocation of the projected, but incomplete, dedication of Wells street to the public use as a street; and hence that the Motor Company’s rights were superior and paramount to any other rights in the strip of land, and that they have been conveyed to the defendant, which now owns them. If, as matter of law, the words of the deed are clear, and must be construed as claimed by defendant, we can see no flaw in the argument. The deed was in form a deed of warranty: It did not, however, in terms convey any parcel of land, but conveyed simply “ the right to construct, build, and operate a railroad with one or two main tracks upon, over, and along that certain tract, piece, or parcel of land . . . known as Wells street, in Murray Hill, according to the plat of said first party thereof, . . . along and upon which said tract, piece, or parcel of land the center line of the railroad has been staked out and located, and along, over, and upon which the railroad of said party of the second part is now located and graded, with all the rights incident to and necessarily or commonly used in connection with the operation of a railroad,” whether operated by steam or other motor power. The words used seem to have been carefully chosen; doubtless with a view [564]*564to clearly define tbe right granted. Do they, under any fair and reasonable rule of construction, mean that tbe Motor Company is thereby granted tbe exclusive use of an eighty-foot strip of land for railroad purposes? We have been unable to bring our minds to this conclusion. If such meaning bad been intended, it would have been very easy to have so indicated in simple phrase and with few words. A grant of the strip of land to be used for railroad purposes would have accomplished the purpose. But in the present grant not only is there no strip of land granted, but even the ordinary expression “ right of way ” is not used. The grant is of “ the right to construct, build, and operate a railroad with one or two main tracks upon, over, and along a certain tract of land ” known as Wells street in a certain plat. Here there appears not only an omission to grant any land, but a specific reference to a certain street as indicated upon a certain plat. It is argued that this reference to the plat is simply for purposes of description and location, but we cannot so regard it. The principle is familiar that, as between private parties, a deed which conveys lands, describing the same by referring to an unrecorded plat, in effect imports the plat into the deed, and operates to estop the grantor from closing up the streets named in the plat which are appurtenant to the property sold. The parties, by their acts, adopt the plat. No sound reason is perceived why this just principle should not apply to the parties to the deed before us, especially as nothing appears upoii the face of the deed indicating any intention to abandon or supersede the plat. Not only is no such intention manifest, but in a later clause in the deed releasing damages the expression is used, “ the construction, operation, and maintaining a railroad <wpon scdd street,” thus apparently definitely recognizing the character of the strip as that of a street. Of course, there can be no question but that the parties could agree upon a limited grant, and we think it reasonably clear from the terms [565]*565of the deed itself that they did agree that the railroad company should have the right to lay and maintain two tracks upon á strip of land which was, as between the parties, a street, and which was intended to remain such.
But it is urged that another clause in the deed clearly indicates an intention to grant a complete and exclusive right of way over the whole strip, namely, the clause which gives the railroad company “ all the rights incident to and necessarily or commonly used in connection with the operation of a railroad,” whether the cars be operated by steam or other motor power. While this clause must be admitted to be in some degree inconsistent with the mere right to lay and operate tracks upon the grade of an existing street, we do not think it can be considered as controlling and overruling the meaning and purport of the clauses first considered: At the most, this clause possibly introduces an element of uncertainty and ambiguity in the deed. The other clauses remain, indicating one intent ; this clause remains, indicating an inconsistent intent; and the deed becomes ambiguous and uncertain in meaning. In such a situation the rule that parol evidence of the circumstances and situation surrounding the parties at the time of the grant may and should be consulted in order fo ascertain its true meaning, is applicable. Brittingham & H. L. Co. v. Manson, 108 Wis. 221.
When the surrounding facts and circumstances are considered, all doubt as to the intention of the parties vanishes. There is no room for two opinions. Both parties intended that the strip of land called Wells street was to be in fact a public street, and that the tracks of the Motor Company were to be laid and used in the center of such street upon a grade conforming substantially to the natural surface of the ground, and which had theretofore been agreed upon. The facts all point in that direction. They are quite fully stated in the statement of the case, and need only be referred to [566]*566here. The officials of the Motor Company knew of the platting of the land, and unquestionably knew also that the plat was before the county board for approval, as required by law, at the time the deed was made.
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WiNSLow, J.
The plaintiff in this case claims that the defendant, under its conveyances, possesses simply the right to lay its tracks and operate its cars over the center portion of a public street, with no right to substantially change the grade of such street; while the defendant makes the broad claim that it owns an ordinary railroad right of way covering the full width of the alleged street, and may change the grade at will, and make such use of the entire tract as is reasonably necessary in the operation of a steam railway, provided such acts are done in in a reasonably careful and workmanlike manner. This is the fundamental issue between the parties, and it naturally divides itself into two questions: first, what rights did the Motor Railway Company acquire under the terms of its deed of July 30, 1890? and, second, Has the defendant acquired any greater rights than those originally granted to the Motor Railway Company? These questions will be considered in the order stated.
1. The Motor Railway Company was a railroad corporation organized under the general law, and possessed the [563]*563right of eminent domain. Had it condemned the strip of land in Murray Hill now known, as Wells street, it would doubtless have acquired the right to exclusively use the whole width of the strip in any manner which, directly or - indirectly, contributed to the safe, economical, and efficient operation of its railroad, not interfering with the rights of the public or adjoining landowners. This would include the 'right to change the location or grade of its tracks. Lewis, Eminent Domain, § 584; R. S. 1878, sec. 1851. The defendant’s claim is, in substance, that the deed made by the Murray Hill Company to the Motor Company by its terms grants just such an estate or right; that, the plat of Murray Hill not having been recorded at the time the deed was made, the deed operated as a revocation of the projected, but incomplete, dedication of Wells street to the public use as a street; and hence that the Motor Company’s rights were superior and paramount to any other rights in the strip of land, and that they have been conveyed to the defendant, which now owns them. If, as matter of law, the words of the deed are clear, and must be construed as claimed by defendant, we can see no flaw in the argument. The deed was in form a deed of warranty: It did not, however, in terms convey any parcel of land, but conveyed simply “ the right to construct, build, and operate a railroad with one or two main tracks upon, over, and along that certain tract, piece, or parcel of land . . . known as Wells street, in Murray Hill, according to the plat of said first party thereof, . . . along and upon which said tract, piece, or parcel of land the center line of the railroad has been staked out and located, and along, over, and upon which the railroad of said party of the second part is now located and graded, with all the rights incident to and necessarily or commonly used in connection with the operation of a railroad,” whether operated by steam or other motor power. The words used seem to have been carefully chosen; doubtless with a view [564]*564to clearly define tbe right granted. Do they, under any fair and reasonable rule of construction, mean that tbe Motor Company is thereby granted tbe exclusive use of an eighty-foot strip of land for railroad purposes? We have been unable to bring our minds to this conclusion. If such meaning bad been intended, it would have been very easy to have so indicated in simple phrase and with few words. A grant of the strip of land to be used for railroad purposes would have accomplished the purpose. But in the present grant not only is there no strip of land granted, but even the ordinary expression “ right of way ” is not used. The grant is of “ the right to construct, build, and operate a railroad with one or two main tracks upon, over, and along a certain tract of land ” known as Wells street in a certain plat. Here there appears not only an omission to grant any land, but a specific reference to a certain street as indicated upon a certain plat. It is argued that this reference to the plat is simply for purposes of description and location, but we cannot so regard it. The principle is familiar that, as between private parties, a deed which conveys lands, describing the same by referring to an unrecorded plat, in effect imports the plat into the deed, and operates to estop the grantor from closing up the streets named in the plat which are appurtenant to the property sold. The parties, by their acts, adopt the plat. No sound reason is perceived why this just principle should not apply to the parties to the deed before us, especially as nothing appears upoii the face of the deed indicating any intention to abandon or supersede the plat. Not only is no such intention manifest, but in a later clause in the deed releasing damages the expression is used, “ the construction, operation, and maintaining a railroad <wpon scdd street,” thus apparently definitely recognizing the character of the strip as that of a street. Of course, there can be no question but that the parties could agree upon a limited grant, and we think it reasonably clear from the terms [565]*565of the deed itself that they did agree that the railroad company should have the right to lay and maintain two tracks upon á strip of land which was, as between the parties, a street, and which was intended to remain such.
But it is urged that another clause in the deed clearly indicates an intention to grant a complete and exclusive right of way over the whole strip, namely, the clause which gives the railroad company “ all the rights incident to and necessarily or commonly used in connection with the operation of a railroad,” whether the cars be operated by steam or other motor power. While this clause must be admitted to be in some degree inconsistent with the mere right to lay and operate tracks upon the grade of an existing street, we do not think it can be considered as controlling and overruling the meaning and purport of the clauses first considered: At the most, this clause possibly introduces an element of uncertainty and ambiguity in the deed. The other clauses remain, indicating one intent ; this clause remains, indicating an inconsistent intent; and the deed becomes ambiguous and uncertain in meaning. In such a situation the rule that parol evidence of the circumstances and situation surrounding the parties at the time of the grant may and should be consulted in order fo ascertain its true meaning, is applicable. Brittingham & H. L. Co. v. Manson, 108 Wis. 221.
When the surrounding facts and circumstances are considered, all doubt as to the intention of the parties vanishes. There is no room for two opinions. Both parties intended that the strip of land called Wells street was to be in fact a public street, and that the tracks of the Motor Company were to be laid and used in the center of such street upon a grade conforming substantially to the natural surface of the ground, and which had theretofore been agreed upon. The facts all point in that direction. They are quite fully stated in the statement of the case, and need only be referred to [566]*566here. The officials of the Motor Company knew of the platting of the land, and unquestionably knew also that the plat was before the county board for approval, as required by law, at the time the deed was made. They must have known also a fact which is very apparent, namely, that the grant of an exclusive right of way to a railroad company over the entire width of Wells street would defeat the whole purpose of the plat, and render a great part of it absolutely inaccessible. They had graded and prepared Wells street for use as a public street with appropriate spaces for sidewalks and for carriage travel, in accordance with a profile and grade agreed upon, which grade differed but little from the natural grade, and afforded access to every lot fronting on the street. They had staked out the center line of their road in the center of the proposed street after the manner of an ordinary street railroad, and in consideration of such grading and preparation of the land for use as a public street they received their grant of the right to construct and operate tracks thereon. To say that an exclusive use of the whole eighty feet was expected to vest in the railroad company under these circumstances, would be little less than absurd. But there are other circumstances which are, perhaps, equally persuasive. The right granted being, at best, an ambiguous and uncertain one on its face, and the place where the two permitted tracks are to be located and operated not being definitely fixed in the grant, it is permissible also to consider the subsequent acts of the parties in practically locating their tracks and utilizing their grant in order to determine the extent of the right granted, and determine where and how, within the limits of the strip of land named, it was intended to be used. This is the doctrine of practical location and use. Lewis, Eminent Domain, § 290; Janesville C. Mills v. Ford, 82 Wis. 416. It appears that the Motor Company, in 1892, laid its tracks upon the street, occupying about twenty feet in the center thereof, and open-[567]*567ated the same for about four years, and until the company became insolvent and went into the hands of a receiver. Circumstances showing practical location could hardly be stronger. We entertain no doubt that by these facts the indefinite and ambiguous terms of the grant as to place and manner of use became limited and fixed. The grant being thus construed and made certain, it is scarcely necessary to say that the release of damages contained in the deed must be construed as a release of such damages simply as would arise from the construction and use of the railroad in accordance with the terms of the grant, and, the grant not giving the railroad company any right to substantially change the grade of the street, the release does not cover any damages resulting from such a change.
2. Passing now to the rights of the defendant company, we are unable to see how they can be held to be any greater than the rights of the Motor Company. The defendant, being a street-railway corporation formed under ch. 86 of the Revised Statutes, evidently does not possess the powers granted by subd. 5, sec. 1828, to commercial railroads organized under ch. 87, to change the course or direction of highways, or carry them over or under its track. The only powers possessed by it in this case to substantially interfere with the grade of Wells street must be those which it has acquired by grant.
Having held that the original grant to the Motor Railway Company was not, on its face,.a grant of the exclusive use of the eighty-foot strip of land called Wells street for railroad purposes, but only a limited right to lay tracks and operate cars thereon subject to its use as a public street, which was at best indefinite and ambiguous in its terms, it is evident that there is no room for the defendant to claim any rights as an innocent purchaser. Its rights were defined in the deed which it received in the same terms as the Motor Company’s rights were described in its deed. [568]*568These rights were on their face limited, and, under the most favorable construction for the defendant, ambiguous and uncertain. The defendant was, therefore, put upon inquiry as to the extent and meaning of the original grant, and the rights of the Motor Company thereunder. Had inquiry been made, the facts appearing in the evidence would > inevitably have been ascertained. Not having inquired when the duty of inquiry was imposed, it stands in the same position as if it had been informed of all the facts' which would have been ascertained. These facts it is unnecessary to repeat, as they have been already fully referred to.
Upon the conclusions reached, we see no reason to question the appropriateness of the remedy granted to the plaintiff in this action. This highway is not within the limits of any city. The defendant, although a street-railway company, has now the right of condemnation over such a highway. Stats. 1898, sec. 1863a. No reason is perceived why it may not proceed to condemn in the manner provided by the general statutes, and thus acquire the right to change grades. Until it does so an injunction against its further attempt to change grades without legal right, and to the great injury of the plaintiff, seems entirely proper.
By the Court.— Judgment affirmed.