Opinion.
Cooper, L.:The bill charges that the company had acquired a right of way ■over the land of the defendant; the answer denied that the right of way existed as charged in the bill, but states that the same extended as a right of way on the surface of the land only through a portion of the track, and that through the remainder of it, the company had only secured the right to construct a tunnel under the ground, and that the agents of the company were engaged in constructing a shaft from the surface without any right to do so.
The answer is made a cross-bill and with it is filed as an exhibit, a copy of the petition on which the writ of ad quod damnum was issued. By this petition, it is stated that the company desired to condemn “ a strip of land 100 feet wide and 1,180 feet long, in all two acres, 258 feet of which is for tunnel purposes,” and in another clause of the petition, it is stated that 980 feet is for surface right of'way, and 250 feet is for tunnel right of way.” Reference is made to a map filed with the petition, but which does not appear with the record. It will be thus seen, that the question argued by counsel for appellant that the condemnation of the right to construct a tunnel does not confer a right to excavate the surface over the tunnel cannot be considered on the record now before us, for in the absence of a map, and the award of the jury, we cannot say that only a tunnel right "was secured by the proceedings to condemn. If, as the petition prays, a strip 100 feet wide through the whole tract was condemned, the company had the right to deal with it as they deem most beneficial to it, either to make the tunnel or to excavate a cut of the desired depth.
On the facts shown, the decree is right, and it is
Affirmed.