STATEMENT OF FACTS. In this case the plaintiff in error condemned a right of way for its railway over and across the land of the defendant in error. Defendant in error filed a demand for a jury trial, and the case was tried to a jury at the February term, 1901, of the district court of Logan county, resulting in a verdict in favor of the defendant, the land owner, for the sum of $1150. Motion for a new trial was made in due time, overruled and excepted to, and the case is brought here for review. Affirmed.
Opinion of the court by Plaintiff in error claimed that this case was tried by the court below upon the theory that the railway company obtained a fee simple title to the right of way taken, and instructed the jury upon this theory. This is the only error assigned on which a reversal is sought. On an examination of *Page 566 the record, we find this case to be exactly on the same point and involves exactly the same principles as case 1207,Guthrie Western Railway Company v. Faulkner, decided at this present term, and reported in this volume, and for the reasons therein given, and the views therein expressed, this case is affirmed, at the cost of the plaintiff in error.
Burford, C. J., who presided in the court below, not sitting; all the other Justices concurring.