
    William C. Fabens, appellant, v. Atchison & Nebraska Railroad Company et al., appellees.
    Filed December 5, 1894.
    No. 5714.
    ¡Review: Conflicting Evidence. A finding and j udgment of the district court will not be disturbed when the evidence upon which the cause was tried was conflicting, without a decided preponderance in favor of appellant.
    Appeal from the.district court of Lancaster county. Heard below before Field, J.
    
      John 8. Gregory, for appellant.
    
      Marquett, Deweese & Hall, contra.
    
   Eyan, C.

The lots involved in this controversy were appropriated by the Atchison & Nebraska Eailroad Company in 1872, —the damages having been duly ascertained and paid. This action was brought in the district court of Lancaster county by the former owner of said lots, by whom it was averred that by non-user the rights of said railroad company and its grantee had been lost, whereby plaintiff became absolute owner, and he accordingly prayed that his title might be quieted. After issues had been joined, a stipulation of facts was filed, which left to be determined but one question of fact, and that was whether or not there had been a non-user of the right of way of the defendants during the period which intervened between the condemnation proceedings and the commencement of this action. Upon conflicting evidence, which certainly did not preponderate in favor of plaintiff, there was a finding and decree in favor of the defendants. Under these circumstances the judgment of the district court must be

Affirmed.  