
    Ft. Worth & R. G. R’y Co. v. J. F. Culver.
    (No. 3192.)
    October 23, 1889.
    Appeal from Tarrant County.
    N. A. Stedman, counsel for appellant.
    Ball, Wynne & McCaet, counsel for appellee.
   Willson, J.

§ 5. Argument; right to open and conclude in condemnation proceedings. This is a proceeding by appellant under the statute to condemn right of way for a railroad over appellee’s land. Appellee filed objections to the award of the commissioners, and the cause was tried in the county court. On the trial in the county court appellee claimed and was awarded the right to open and conclude the argument. Appellant excepted and assigns this matter as error. This court has held that, in a proceeding to condemn land, the party seeking the condemnation, and not the owner of the land, is the party upon whom the burden of proof rests, and is the party entitled to open and conclude the argument, unless such right be defeated by an admission made and entered of record in accordance with rule 31 for district courts. [3 Civil Cas. Ct. App., §§ 409, 415; 8 Crim. Law Mag., p. 620, § 4.] No such admission was entered of record by appellee in this case.

Beversed and remanded.  