
    The Atchison, Topeka & Santa Fé Railroad Company v. A. Keller.
    Action brought in the district court of Barton county, by The Railroad Company against Keller, to recover the possession of the south one-half of the southeast one-fourth of section 27, township 18, south, range 15, west, situate in said county. Judgment for defendant, May 15,1883. The plaintiff brings the case here.
    
      Geo. R. Peeh, A. A. Hurd, and Robt. Dunlap, for plaintiff in error.
    
      Clayton & Clayton, for defendant in error.
   Per Curiam:

The judgment in this case must be reversed, and the case remanded for a new trial, for these reasons: The judgment was rendered in vacation. (Earls v. Earls, 27 Kas. 538.) In overruling the motion for a new trial, the court held that “The verdict and special findings of fact are contrary to and unsupported by the preponderance of the evidence.” (The State v. Bridges, 29 Kas. 138; Williams v. Townsend, 15 id. 563; K. P. Rly. Co. v. Kunhel, 17 id. 145.) The testimony as to the time of the definite location of plaintiff’s road does not differ substantially from that given in the case of the same plaintiff against Mecklim, 23 Kas. 167, and the decision then made must control this question.

A new trial being necessary, we forbear any discussion of the question as to whether the land was within the ten-mile limit, or not.  