The plaintiff introduced at the hearing before the master the record of a judgment, and of the proceedings at the trial in a court of law in favor of the administrator of the estate of his father, from whom his title came by inheritance, against the defendant, to show that the matter now in issue was res judicata, or that the defendant was estopped from setting up a defence in the present suit. He then took sundry exceptions to the finding of the master on this evidence. The master annexed to his report a copy of this evidence, and of all the other evidence in the case, and the plaintiff moved to recommit the report, with instructions to report only the evidence upon which he based his findings, and such other evidence taken before him as either party might request. The court overruled the motion, and the plaintiff appealed. The order overruling the motion was correct. The report shows that the evidence was reported to the court at the plaintiff’s request, in accordance with the rule under which the master was acting. If the parties agreed to submit the case to the court upon a part of the evidence taken before the master, they could do so without an order of recommittal, and in the absence of such an agreement neither party could properly be compelled under this rule to submit to a hearing upon only a part of the evidence.
The plaintiff also appealed from the decree overruling his exceptions, confirming the report, and dismissing the bill. This decree was plainly right. The plaintiff has no title to a way by deed or grant. He has not used the way in question long enough to acquire a right in it by prescription. The way in another place which he had by prescription was taken by the defendant, and paid for in accordance with the verdict of the jury in the action at law above referred to.
The findings of the master that in fact and in law no right to the way now claimed was in issue in the former action, or submitted *498to the jury for consideration, was correct. No such issue was raised by the pleadings, and the suggestion of the plaintiff’s counsel that the jury might find that a substituted right of way had been acquired, was expressly objected to by the defendant’s counsel, and not adopted by the court.* The stenographic report of the proceedings at the former trial shows plainly that the plaintiff gained, and the defendant lost, no right by anything that occurred there in regard to the alleged way now in question.
Decree affirmed.
When the counsel for the railroad company requested, in the trial of the petition for damages, that, if the jury found there was a prescriptive way, they should find where it was, it was conceded that it was as laid down on Break’s plan, and the counsel for the railroad then said, “ If it was there, it was not anywhere else,” to which counsel for the administratrix said, “ Then it went by substitution, by the acquiescence of the railroad, in the other place.” To which the reply was made, “Not at all. You cannot get it in two places. If you had it, we are willing to pay any damage to it, but we want that to he the end of it.” The petitioner’s counsel then asked the court, if the jury found there was a right of way, that they should also find that the petitioner had a substituted right of way. This the judge declined to have done, saying that he did not understand there was any substituted right of way, and that the question of such substituted way was not in issue.