
    Green v. Central Railroad Company of New Jersey, Appellant.
    
      Contract — Verbal contract — Railroads—Taking stone for repairing roadbed — Evidence—Case for jury.
    
    In an action by a landowner to recover the value of the stone and earth taken from his land by a railroad company for use in repairing its roadbed, the case is for the jury where the evidence is conflicting whether the materials had been taken without authority or under a standing verbal agreement between the parties by which the company was allowed to take all the stone it might need at a fixed price per year.
    Argued March 8, 1909.
    Appeal, No. 113, Jan. T., 1908, by defendant, from judgment of C. P. Carbon Co., June T., 1906, No. 23, on verdict for plaintiff in case of Adam A. Green v. The Central Railroad Company of New Jersey.
    April 12, 1909:
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover for stone and earth alleged to have been wrongfully taken from plaintiff’s land. Before Heydt, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $2,760. Defendant appealed.
    
      Error assigned was in submitting the case to the jury.
    
      Laird H. Barber, with him Frederick Bertolette and Jackson E. Reynolds, for appellant.
    
      E. O. Nothstein, with him Wm. G. Freyman, for appellee.
   Per Curiam,

This action was to recover the value of stone and earth taken from the surface of the plaintiff’s land by the defendant for use in repairing its roadbed. The dispute at the trial was whether the materials had been taken without authority or under a standing verbal agreement between the parties, by which the defendant was allowed to take all the stone it might need at a fixed price for each year. The issue was purely one of fact and we find no error in its submission. ■

The judgment is affirmed.  