delivered the opinion of this court.
The testimony offered by the plaintiffs, in the first bill of exceptions on the part of the defendants, to prove the damage done by the location and construction of the rail road through their lands, was obnoxious to the objection taken to its reception. All questions in relation to such damage were terminated and concluded by the inquisition previously found by the jury. They formed no part of the issue then on trial. The question to be tried by the jury empannelled in the county court, was the extent of the injury which resulted to the plaintiffs by the abandonment and discontinuance of the railway on their lands, and its location and construction on the lands of another person. The county court therefore erred in admitting the testimony thus objected to by the defendant.
A majority of this court are of opinion that the county court were right in rejecting the defendant’s first prayer, in his second bill of exceptions; that the plaintiffs could not recover, inasmuch as the removal- of the railway complained of was made under the authority and pursuant to the provisions of the act of Assembly of 1835, ch. 371. From this opinion I have ■dissented ; but, as no reasons have been assigned in support of it, I do not deem it necessary to state the grounds of my dissent.
The defendant’s second prayer in the same exception, to wit: “that the plaintiffs are not entitled to recover in this action, for the removal from their land, of the rail road of the defendant, unless they find some actual damage to the plaintiffs growing out of such removaland his third prayer, to wit: “that if the plaintiffs are entitled to recover in this action *37the measure of the damage to be awarded them, is the damage sustained by them in having the rail road of the defendant m its present position, instead of having it upon its original location on their land ; and that if the jurors find the plaintiffs to have sustained no injury from such change, then that they are not entitled to recoverwe think both ought to have been granted : and that in failing to do so, the county court erred.
In the third bill of exceptions, the county court was right in its construction of the instruction it had given to the jury as stated in the second bill of exceptions. The error of that court consisted in its giving the instruction, not in its interpretation of it.
This court concur with the county court in its construction of its instruction as stated in the third bill of exceptions. And a majority of this court approve of the refusal of the county court to grant the defendant’s first prayer in his second bill of exceptions. But this court, dissenting from the county court’s decision in the first bid of exceptions, and in its refusal to grant the defendants’ second and third prayers in his second bill of exceptions, and from its instruction given in that exception to the jury, reverse its judgment.
LET A PROCEDENDO ISSUE.