
    William Jouett, etc., v. Poplar Mountain Company. S. J. Hunter v. Poplar Mountain Company.
    Eminent Domain — Construction of Railroad — Right-of-way—Entry with Knowledge of Landowner — Trespass.
    The action of trespass cannot be maintained against a railroad for its right-of-way where the entry on the land was made while the owners were living on it and no objections being made thereto,
    APPEAL FROM CLINTON CIRCUIT COURT.
   Opinion by

Judge Pryor:

Affirmed on appeal of Jouett, etc., and reversed as to S. G. and S. J. Hunter on the cross-appeal of appellee.

These three cases were tried together in the court below and a verdict rendered for the plaintiffs in each case. The plaintiffs in the court below are the appellants in this court. These were actions of trespass instituted by the appellants against the appellee for constructing without right and against the consent of the appellant a railroad in and over their respective lands. The instructions asked for by either party will not be considered by this court unless it appears that objections were made to the giving of the instructions in the court below, an exception taken upon the refusal to instruct not being deemed sufficient. It is difficult to perceive how the action of trespass could be maintained by either party upon the facts proven.

The entry upon the land was made with the knowledge and consent of the parties in possession at the time the road was constructed by the company, and as is shown in the two actions of S. G. Hunter and S. J. Hunter, the railroad company entered upon the lands by the consent and under a written agreement with S. G. Hunter while he was in possession and held the legal title.

Joseph E. Hays, for appellants.

Winfrey & Winfrey, for appellee.

The appellants were living upon the land at the time, and made no objection whatever to the construction of the road, but on the contrary the proof shows that they were assenting to it.

The appellees pray a cross-appeal in the two cases of S. G. and S. J. Hunter only. The case as to the appellant, William Jouett, is affirmed and the case as to S. J. and S. G. Hunter reversed upon the cross-appeal, and for further proceedings thereon as to them not inconsistent with this opinion.  