
    BENTON HARBOR TERMINAL RAILWAY CO. v. HALL.
    Condemnation Proceedings — Evidence—Appeal.
    Where the record on appeal in condemnation proceedings does not contain the testimony, an objection that there was no evidence to sustain the averment of the petition that petitioner had been unable to acquire title to the land will not be considered.
    Appeal from Berrien probate court; Ellsworth, J.
    Submitted April 11, 1902.
    (Docket No. 94.)
    Decided September 17, 1902.
    Condemnation proceedings by the Benton Harbor Terminal Railway Company against Charles W. Hall. From a judgment for petitioner, respondent appeals.
    Affirmed.
    
      Weldon Bros., for appellant.
    
      Kelley & Chase, for appellee.
   Moore, J.

Nearly all of the questions involved in this case are disposed of in the case of the same petitioner against King, ante, 377 (91 N. W. 641), and are governed by the opinion in that case. There are some questions, however, which need to be referred to here. It is claimed :

‘ ‘ There is nothing in the petition which shows that the land condemned, or any part of it along .said route, is intended for station grounds; nor was there any evidence tending to show the necessity of the lands, aside, than for general railroad purposes.”

The petition is too long to set out in full here, but a reference to it shows a full compliance with the statutory provision as to what it shall contain.

It is claimed there was no evidence that the petitioner had been unable to acquire title to the land. That statement is averred in the petition, and, as the testimony taken before the jury is not before us, we are unable to say there was no evidence of the fact.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.  