This action was brought by the appellees to recover the title and possession of a tract of land, and for damages alleged to have been caused by the appellant having taken possession thereof, and thereon erected a part of its railway and buildings appurtenant thereto. Many items of damage were set out in the petition, and in addition to the ordinary prayer for relief in such cases there was an alternative prayer, in the event the other relief was not granted, that so much of the land as the appellant was entitled to have condemned for its road may be designated by metes and bounds, and that they have their damages therefor, as- well as for the alleged trespass.
The railway company answered by a general denial, and also set up a grant of right of way fifty yards wide, upon which it alleged its road and other improvements had been constructed.
It also alleged a parol agreement with the appellee J. II. Adams, by which he was charged to have donated to the company about twenty acres of land, embracing the land upon which the buildings and a part of the road was erected, in consideration that the company would there locate a depot. The railway company also prayed for condemnation of the land necessary for the purposes of the company, in the event the former grants alleged to have been made were not found valid.
*480The jury returned a verdict as follows: “We, the jury, find for defendant as to right of way expressed in the deed, to wit: Seventy-five feet on either side of said railroad track, beginning at a point in the center of said track. Also damages for plaintiffs in the sum of §1,500 for destruction of orchards, shrubbery, ornamental trees, fences, ditches, highways, and all damages shown to have accrued by-reason of the location and construction of said railroad.”
The decree carried out the verdict, adjudging the right of way to the defendant, and §1,500 to the plaintiffs, and in addition adjudged to them all of the land as “ described in plaintiffs’ petition, that is situated more than seventy-five feet from the center of the main track of the defendant’s railroad, on each side thereof,” and a writ of possession therefor, and that the plaintiffs be quieted in their possession thereof, and that the defendant’s claim, except to the right of way, one hundred and fifty feet wide, be annulled.
A deed was offered in evidence made by John H. Adams and wife, in reference to which no question arises upon this appeal, conveying to the railway company the right of wny over the land in controversy as found by the jury.
The evidence in relation to damage was general in its character, and mainly related to the injury or damage done to the land by the construction of the railway upon it, though there was evidence tending to show that the railway company had been negligent in regard to fences, through which stock had entered the premises of the appellees and had injured their orchard, crops, etc. They also showed that the railway company had for its own purposes inclosed more land than was covered by the grant of way.
Both parties having prayers for condemnation of a part of the land sued for, if it should appear that such relief was necessary, the court gave very fully the statutory rules regulating the condemnation of land under the right of eminent domain, and especially such as relate to the measure of damages; but there was no charge which clearly instructed the jury in regard to the measure of damages in case the jury found that the appellees had granted the right of way, as the jury subsequently found that they had, but had not granted all the land appellant had inclosed.
The only charges bearing upon that question were as follows:
“In determining the leading and controlling issues in this case, you will inquire whether, as alleged, the defendants entered upon and took possession of the land described in the plaintiffs’ petition, and constructed their road thereon. You will then determine from the evidence whether they did so with the consent, either *481verbal or written, of John H. Adams, or John H. Adams and Avife.”
“If you find that the entry of the defendants upon the tract of land was with such consent, you will not then consider the question of damages. But if you find that no such consent Avas given the defendants, you will then proceed to determine the question of damage.”
“If you believe from the evidence in this case that the defendants entered upon and took the land described, and constructed their road thereon, and that they took the land with the consent of John II. Adams, verbally or under the terms of a deed granting the right of way through the same, executed by John H. Adams and Avife, or in pursuance of any contract or agreement between the defendants and John H. Adams, fulfilled upon the part of defendants, then, in that case, you will find for the defendants.”
“But if you believe that Adams and wife executed the deed giving the right of way through the land 'which is the subject matter of this suit, to the extent of fifty yards in Avidth, and you believe that this deed was not mutually canceled by the plaintiffs and defendants before the defendants entered thereon, then the defendants would not be liable for any damage upon the strip of fifty yards so conveyed.”
“But if you believe that the defendants, though entering under this deed, and you also believe that fences, trees and orchards of the plaintiffs were destroyed by defendants on adjoining tracts, or that the adjoining tract Avas injured by reason of the letting in of stock, or failure of defendants to keep up proper fences or cattle guards to protect the adjoining fields, then the defendants would be-liable for whatever the evidence may show you the damage to be.”
The jury Avere very clearly instructed that if the possession Avas taken AArith consent, then no damage could be recovered and the verdict should be for the defendant; and they were clearly instructed that if the appellees had granted a right of way fifty yards - wide through the land, they could recover no damage upon the land so conveyed; but it is evident that the jury found that; the land outside of the roadway fifty yards wide, which the appellant had inclosed, Avas not possessed by consent of the appellees, and from their Arerdict they must have felt authorized on this account, not only to find damages for the trespass upon that land, but also to find damages against the appellant for whatever under-- the - evidence they *482deemed proper, for such general damage as was done to the entire tract of land through which the road ran, by reason of the location and comtruction of the road.
[Opinion delivered January 30, 1883.]The jury enumerate the matters upon which they base the damage, and all of them are items which the court, in the latter part of the charge above referred to, had informed them they might consider in case the entry was lawful, except the two last items, “ all damages shown to have accrued by reason of the location and construction of said railroad.”
Having found that the railway company was, by deed, entitled to a roadway, as a matter of law no damage could accrue to appellees from the proper location and construction of the road on that roadway, however much such location and construction may have diminished the value of the residue of the land. Parties who, by deed, convey the right of way to a railroad, are conclusively presumed to have assented to bear all loss and take all profit which may incidentally result from the location and construction of the road in proper manner over that roadway.
The court should have instructed the jury in effect, that, if the appellees granted the right of way, no damage could be recovered, either for the use of that right of way, or for the depreciation in value of the other land of appellees, or for any inconvenience to which they might be subjected, provided the same did not result from the want of due care and skill in the location and construction of the road.
There being no such charge, the greater part of the evidence going to the question of the depreciation of the value of the entire tract of land by reason of the location and construction of the road, and the greater part of the charge relating to the condemnation of right of way and measure of damages in such cases, the jury evidently conceived that they might consider the question of damages with reference to land other than the road way granted, as though no right of way had been granted by deed.
This led to an inconsistent verdict which will require a reversal of the judgment.
There were errors in the admission of testimony which will probably not occur upon another trial, and they will not be further considered.
The judgment is reversed and the cause remanded.
Reveksed and demanded,