
    Application of Gruhl Sash & Door Company.
    
      December 15, 1920
    
    January 11, 1921.
    
    
      Appeal and error: Affirmance by divided court.
    
    Where the justices of the supreme court are equally divided in opinion on the question involved on an appeal, the order appealed from will be affirmed.
    Appeal from an order of the circuit court for Milwaukee county: Lawrence W. Halsey, Circuit Judge.
    
      Affirmed.
    
    Proceeding instituted by a landowner under sec. 1852, Stats. 1917, for the condemnation of certain of its land by a railway company which, petitioner claims, appropriated the land for railroad right-of-way purposes. The strip of land in question averages about three feet in width. The trial' court determined that the land had been so appropriated and ordered the appointment of' appraisers for condemnation. From this order the railway company appeals.
    For the appellant there was a brief by C. H. Van Alstine and H. J. Killilea, both of Milwaukee, and oral argument by Mr. Van Alstine.
    
    For the respondent there was a brief by Otjen & Otjen of Milwaukee, and oral argument by Henry H. Otjen.
    
   Jones, J.

Mr. Justice Kerwin did not participate in the consideration and decision of this case. The court is equally divided in opinion upon the question involved on this appeal. Mr. Justice Vinje, Mr. Justice Rosenberry, and Mr. Justice Eschweiler are of opinion that the order appealed from should be reversed, and Mr. Chief Justice Siebecker, Mr. Justice Owen, and the writer are of opinion that the order should be affirmed. Under the established rule it follows that the order appealed from is affirmed. Swenson v. Flint, 123 Wis. 613, 101 N. W. 1135; Hagenah v. Milwaukee E. R. & L. Co. 136 Wis. 300, 116 N. W. 843; Estate of Carter, 167 Wis. 89, 166 N. W. 657.

By the Court. — The order appealed from is affirmed.  