— These two cases were submitted as one case, and will be considered together.
The Rutledge & Julian Railroad Company and B. P. Odum agreed to submit to arbitration a matter of controversy in regard to a right of way over the lands of the latter. The articles of agreement, submitting the matter to arbitration, provided that, if “either party shall fail to keep, observe and perform the decision and award, he or it shall pay to the other party two hundred and fifty dollars as liquidated damages.”
The railroad company, appellee, claimed that Odum forfeited the penalty, and instituted condemnation proceedings in the Probate Court, under the statute, to condemn the land to the right of way. From the trial and order of condemnation an appeal is taken to this court. The railroad corporation then sued upon the articles of submission, and recovered the amount *494stipulated in the agreement. From the judgment rendered on this trial an appeal is taken from the Circuit Court.
Article I, section 24 of the Constitution, in regard to the exercise of the right of eminent domain, among other provisions declares as follows : “Nor shall private property be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner; provided, however, that the General Assembly may by law secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved,” &c.
Article 11, Title 2, Part 3 of the Code, commencing at section 3207, prescribes a system of condemnation proceedings in the Probate Court, when any cor’poration, person, or association of persons proposes to take lands, or to acquire an interest or easement therein, for any uses for which private property may be taken, to have the same condemned to such uses. Section 3216 of the Code provides, that the order of condemnation, upon the payment of the sum ascertained, shall vest-in the applicant the easement proposed to be acquired, for the uses and purposes stated in the application, but tor no other uses and purposes.
Construing- the written agreement between B. A. Walker, president of the corporation railroad, and B. P. Odum, the owner of the land (in which the matter in dispute is stated to be “concerning a right of way” over the lands of the said Odum), in connection with the constitutional and statutory provisions, it is clear that no greater interest in the land was to be appropriated to the railroad than a mere easement. In fact, the agreement provides, “the determination of the location, and the damages for the right of way over said lands,” should be left to the named arbitrators for decision. The fee of the land, and ownership of improvements thereon, and everything- not incompatible with the use intended as a right of way, remained in the owner. Simply to acquire the right to use the land to the same extent, and no more, as if the right of wajr had been secured by compulsory proceedings under the statute, was the purpose of the arbitration.- — Ala. & Fla. R. R. Co. v. Burkett, 42 Ala. 84; Lance Appeal, 55 Penn. St. 16; 93 Amer. Dec. 722, and note 729.
The railroad had the right to remove all buildings or constructions located upon its right of way, or which interfered with its use ; but the property interest in such building or improvement remained in the owner, subject to the right of the company to have them removed. The award rendered by the *495arbitrators seems to be in accord with the matters submitted to them. It refers to the agreement of submission, assesses “the damages at five hundred dollars for the right of way so taken, or to be taken according to the survey.” It appears from the evidence that the line for a right of way at that time had been surveyed, and the damages assessed were for the right of way “according to the survey.” It is not void for uncertainty. Id certum est quod reddi certum potest. We do not doubt that Odum had the right to the buildings and the fences, and his claim to resume them ought not to have been refused or interfered with by the railroad company. •
We are not considering the effect of the deed signed by Odum and wife and tendered to the company, but the right of the parties under the award. The demurrer to the pleas of the respondent in the ad quod damnum proceedings in the Probate Court ought not to have been sustained; and we would reverse and remand this case, if this court had jurisdiction of. the case. We have held that, in ad quod damnum proceedings, no appeal lies from the Probate Court to the Supreme-Court, but the appeal must be taken to the Circuit Court Postal Tel. Co. v. A. G. S. R. R. Co., 92 Ala. 331; 9 So. Rep. 555; Woodward Iron Co. v. Cabaniss, 87 Ala. 328 Ala. Midland Railway Co. v. Newton, ante, p. 443.
The pleas of the defendant in the appeal from the Circuit'. Court do not appear, except in the bill of exceptions. It is-not the office of a bill of exceptions to present the pleadings,, and the rulings of the court thereon. — Petty v. Dill, 53 Ala. 641 ; Ex parte Knight, 61 Ala. 482. The record does show that “issue was joined,” and thereupon came a jury, &c. The rule is that, when the record shows that the case was tried upon issue joined, but does not show what pleas were filed, it is presumed that the general -issue was pleaded; and this is the only issue as presented in this record we are at liberty to regard as having been pleaded. — May v. Sharp, 49 Ala. 140; Hatchett v. Molton, 76 Ala. 410. The plea of the general issue cast upon the plaintiff the burden of proving every material allegation of the complaint. The defense had the right to meet such evidence with counter proof. — Petty v. Dill, 53 Ala. 645; 49 Ala. 140.
The deed tendered to Odum for his signiture is not set out. The bill of exceptions states it was “in proper form and substance for appropriate conveyance.” What these words embrace we do not know. There was evidence tending to show that, upon the reading of the deed, Odum replied, that he would not sign it, unless the railroad would agree for him to move his fences and improvements; and he was notified not *496to remove any of the improvements. Now, if the deed tendered 'to him was a conveyance of more than a right of way across the land — a mere easement — Odum was not required to sign it, by the terms of the award of the arbitrators; and if more was demanded of him, as a condition precedent to the payment of the damages awarded by the arbitrators, the railroad was more in default than Odum. Furthermore, Odum was entitled to a reasonable time to advise. himself as to whether the deed tendered to him for his signature accorded with the decision of the arbitrators, and his refusal to sign the deed, accompanied with the statement that he would sign it if it was in accordance with the decision of the arbitrators, can not be construed info a refusal to abide by his agreement, so as to incur the forfeiture provided therein, at least until he had a reasonable time, under the circumstances, to inform himself as to the extent of their decision. The award allowed the railroad ten days within which to pay the damages assessed. Three days after the rendition of the award, Odum signified his willingness to abide the decision of the arbitrators, tendered a deed to the right of way, and offered to receive the money; and in no way at any time, so far as we can discover from the evidence, has he signified a refusal to comply in every respect with the award. If the jury were satisfied from the evidence of the truth of these statements, the defense was made out under the'general issue.
There was no error in excluding the testimony offered by the defendant to show that the president of the railroad company directed the arbitrators not to value the improvements, as the railroad corporation did not want them. Such proof, in a proper cáse, might operate as an estoppel; but this is an equitable rule, not cognizable in a court of law.
Set-off is not available under the general issue, and there was no error in refusing to charge the jury as requested in this respect.
In regard to a tender of money, the general rule is, that the money must be actually produced and proffered. It is well settled, however, that the proffer of the money is dispensed with, if the party is ready and willing to pay the same, but is prevented by the creditor’s declaring that he will not receive it. — Rudulph v. Wagner, 36 Ala. 702. A tender, accompanied with conditions which the party has no right to impose, is not a legal tender. A mere tender of the money does not discharge the obligation. The debt remains, and to be available the tender muse be kept up.
In the case of the appeal from the Probate Courl, the appeal is dismissed.
*497In the case of the appeal from the Circuit Court, the judgment of the lower court is reversed, and the cause remanded.