Opinion by
Judge Lindsay:In the suit against appellant to' compel him to pay the amount subscribed for stock he defended upon the ground that the appellee had unlawfully taken and appropriated a portion of his lots in Ger-mantown.
By an amended answer he claimed that its road had been unlawfully located on his said lots. Upon his motion the jury was instructed that if they believed that appellee, without appellant’s consent, entered upon this land and ploughed or dug up his soil, “and removed or destroyed his fencing, and appropriated any part thereof, thereby depriving him of the use thereof,” they should find for him. the damages thereby sustained. Under this pleading and instruction he recovered on his set-off seventy-five dollars. We *325can not escape the conclusion that the fact of the appropriation of the land in the location of the road, and his being thereby deprived of its use, was considered by the jury when the verdict was made up.
Wills, Taylor, for appellant. Donaphin, for appellee.The nature of his plea and the instruction asked by him clearly imports the fact that he regarded and treated the appropriation of the land or right-of-way as complete. He must, therefore, be regarded by the defense thus made as having consented that appellee should have the right of way over his said land in consideration of the amount allowed therefor by the verdict of the jury. It does not matter that he had not parted with the title by conveyance, or bound himself to do so by a written obligation. He has estopped himself to claim, possession as against the appellee. Judgment' affirmed.