The only distinction between plaintiffs’ situation and that in McCord v. Eastern R. Co. 136 Wis. 254, 116 N. W. 845, is that at the time of the commencement of the suit defendant had as yet made no entry and erected no structure upon the plaintiffs’ land. There could, therefore, be no question of the waiver or loss of plaintiffs’ right to object which might result from even tacit acquiescence in the occupation of their premises by the railroad. All the reasons which led to the conclusion in the McCord Case apply here and must control the result.

By the Court. — Order appealed from is reversed, and cause remanded for further proceedings according to law.