—This was a proceeding commenced by the appellant against the appellee to appropriate a portion of his land on which to construct its road, the appellee having refused to relinquish the same, and the parties not having been able to make a contract for the same, according to section 7, i G. & PI. 475. The proceeding was commenced before a justice of the peace ifr Tippecanoe county. The three jurors summoned before the justice determined that the appellee sustained no damage by reason of the appropriation of the land. The appellee appealed to the Tippecanoe Civil Circuit Court. The venue was then changed to the White Circuit Gourt, and then to the Carroll Circuit Court, where there was a trial by the court, and a special finding, and, notwithstanding a motion for a new trial, a judgment for the appelle for five hundred dollars damages.
The only error assigned in this court is the overruling of the appellant’s motion for a new trial. The reasons for a new trial are the following: first, the court erred in the conclusions of law in allowing the defendant consequential damages, and refusing to charge him with consequential benefits to his lands; second, because the court erred in allowing ex*265cessive damages to the defendant; third, the said findings of fact are contrary to law, and not sustained by sufficient evidence.
No question is presented by the record as to the correctness of the conclusions of law by the court. If such conclusions of law were incorrect, they should have been excepted to by the appellant, and assigned as error. A new trial is a re-examination of the facts. The City of Logansport v. Wright, 25 Ind. 512.
The amount of the damages awarded does not appear from the evidence to have been excessive. On the contrary, some of the witnesses estimate the amount higher than the finding of the court.
We discover no reason for granting a new trial because the finding is contrary to law, and we think it in accordance with the evidence. The question mainly discussed is that the court improperly included in the estimate of the damages the expense or cost of materials for a fence on each side of the road where it runs through the lands of the appellee, and we are referred to the Indiana Central Railroad Company v. Hunter, 8 Ind. 74. But in that case the evidence was excluded because the allegations of the complaint were too narrow to allow the evidence to be given. There is no such objection in this case. It seems to us to be a proper element of damages in such a case. The White Water Valley R. R. Co. v. McClure, 29 Ind. 536.
The judgment is affirmed, with ten per cent, damages and costs.