I concur.
*562Mr. Justice Pigott:I am inclined to- tbe opinion that • evidence of an offer to buy, made in good faith, is admissible in favor of the owner of property as tending to prove its value. .But the testimony of the plaintiff and Condon touching supposed offers of purchase by the right of way agent was, I think, both hearsay and immaterial. The agent was not acting for -himself but assumed to speak for the defendant; there was nothing tending to show authority in him to make any offer in defendant’s behalf, and hence it did not appear that either offer was bona, fide. Not being satisfied that the error in admitting it was without prejudice; I concur in the reversal.
I dissent from the holding that the plaintiff owed to the defendant the legal duty to mitigate damages or lessen the amount thereof by abating or removing the nuisance existing on the land of another.
As to the sufficiency of the complaint: No attack by demurrer or otherwise was made ivpon it in the court below, where the case was tried upon the theory that a cause of action was stated; the opening brief of counsel for the defendant confessed its sufficiency and expressly admitted that the order under which the defendant entered upon plaintiff’s property was void, and not until the oral argument in this court did the defendant suggest that the order was only voidable. Under these circumstances I am of the opinion that the allegations of the complaint and the evidence should be liberally construed and every reasonable intendment indulged in favor of the plaintiff. So regarding the complaint and the evidence, I think the former states a cause of action and the latter supports ij.