
    Ers v. Home and Northern Railway Company et al.
    
   Holden; J.

Where a deed was made to “that strip of land one hundred feet wide, being fifty feet on each side of the center line of the railroad as the same is or may be located, across” described lots of land, in consideration of $10 and “the further consideration of the benefits accruing to said party of the first part from the construction of a railway into or through his lands,” in which deed it was stated, “No growing crops, building, or improvements on the land shall be damaged in the location, construction, or operation of said road. Nor injury or dam-, age to the water-power or water-power site on said lots,” and the maker of such deed filed an equitable petition to enjoin a railroad company, holding under the grantor in such deed, from constructing a railroad along a specified route across the lots of land, because such construction would damage the “water-power site on said lots,” held:

1. The admission of testimony that the plaintiff bought the lots under a written option given him by his grantor, and the admission in evidence of the written option providing that the plaintiff was to give the right of way for a railroad through said property, if objectionable for any reason, was not hurtful to the plaintiff upon the hearing of the application for an interlocutory injunction, whether it was or was not provided in the deed to the plaintiff that he was to give such right of way, as it appears that the plaintiff did convey a strip of land on which such railroad was to be constructed “through said property.”

2. Testimony that at the time of the execution of the deed by the plaintiff the route for the projected railroad' had been located aci'oss the lots at a particular place was admissible to explain the language first above quoted, in the deed from the plaintiff, and to rebut the allegation and testimony of the plaintiff that when such deed was made “the line for the proposed railroad therein referred to had not been located.”

3 The plaintiff having alleged and offered testimony to show that the. construction of the railroad at a particular place would not only not benefit his land but would work irreparable injury thereto, testimony to disprove this contention was admissible.

Argued October 20,

Decided December 23, 1909.

Petition for injunction. Before Judge Wright. Floyd superior court. August 5, 1909.

John W. & Q. E. Maddox, for plaintiff.

McHenry & Porter, for defendant.

4. Where the sworn answer of the plaintiff was admitted in evidence, on the hearing of an application for an interlocutory injunction, as an affidavit, and objections were made to an excerpt therefrom, and some of the statements contained in such excerpt were admissible, the overruling of objections to the excerpt as a whole will not be disturbed.

6. Under the pleadings and the evidence, there was no abuse of discretion ' in refusing to grant an injunction.

Judgment affirmed.

All the Justices concur.  