The opinion of the court was delivered by
Valentine, J.:The amount of the plaintiff’s recovery in this case in the court below was, as will be seen from the verdict, the special findings and the judgment of the.court below, the amount of the depreciation in value of the plaintiff’s land caused by the permanent taking and appropriation by the rail*657road company, for railroad purposes, of a portion of such land; and nothing was recovered for the value of the land actually taken, or for any trespasses or other wrongs of a temporary character committed upon the land. The judgment was for $1,500, which was intended to be compensation only for the depreciation in value of the plaintiff’s land caused by the construction and operation of the railroad. The first alleged error is as follows:
“The court erred in permitting the plaintiff to amend her petition by changing her cause of action from a trespass, and substituting therefor a cause of action for compensation for the taking and appropriation of a strip of land.”
What the plaintiff’s original cause or causes of action was or were, we cannot tell, for no copy of her original petition is contained in the record brought to this court. Probably, however, from a report of the case as it was tried upon the original petition, and as found in 36 Kas. 45, et seq., and also as indicated by a motion of the plaintiff in error, defendant below, filed in the district court after the case was returned from the supreme court to that court and now found in the record, it might be inferred that such original petition contained allegations sufficient to authorize a recovery for damages resulting from either a permanent taking and appropriation of a portion of the plaintiff’s land or for trespasses committed thereon. A portion of the original petition is contained in 36 Kas. 46, 47; and the judge of this court, in delivering the opinion of the court, used the following among other language with respect to such original petition:
“She (the defendant in error, plaintiff below) now says that she elected to bring her action for a permanent appropriation and injury, and tried the case upon that theory; and probably the allegations of the petition may be regarded as sufficient to accomplish that purpose.” (36 Kas. 49.)
The said motion reads as follows:
“Comes now the defendant, and by leave of the court moves the court to require the plaintiff to amend her petition filed in the said cause and make the same more definite and *658certain in the following respects, to wit: To show the nature of her action, by alleging whether the same is for a permanent appropriation of the land described in said petition or for trespass thereon.”
The defendant in error, plaihtiff below, in response to this motion, filed an amended petition, stating a cause of action, possibly both for permanently taking and appropriating a portion of her lánd for railroad purposes, and also for trespasses thereon, though it is not clear that the petition stated a cause of action for a permanent taking and appropriation of a portion of the plaintiff’s land. Afterward, the plaintiff, with leave of the court, filed a second amended petition, the one now in question, stating a cause of action for a permanent taking and appropriation of a portion of her land, and also causes of action for trespasses upon such land.
i Pleadings— presumption" on appeal. . We cannot say that the court below erred in permitting the plaintiff to file her second amended petition. Probably all the petitions filed by her stated substantially the same facts, and probably no one of them as to the facts stated was a great departure from the preceding one or ones; and it is the facts stated which constitute the cause of action. A prayer for relief never constitutes a part of the cause of action. Under the allegations of the original petition, the plaintiff probably had a right to prove a permanent appropriation by the railroad company of a portion of her land, and to recover damages for the permanent appropriation thereof; and the original trial was conducted upon that theory, as is shown in 36 Kas. 48, et seq. Under the allegations of the second petition, which was the first amended petition, it is more questionable. The facts stated are probably sufficient, but the prayer for relief is indefinite. Under the allegations of the third petition, which was the second amended petition, and the one now in dispute, there can nQ Under all the facts and circumstances of this case, we cannot say that the court below committed any error in permitting the aforesaid amendment.
*659The next alleged error is as follows:
“ The plaintiff cannot recover compensation for a permanent appropriation, because, first, the railroad company does not and has not occupied with its tracks any land belonging to plaintiff; second, because, before the. filing of the amended petition, the land was condemned by the city as a street, and the occupation of the street by the railroad company was legalized by ordinance.”
It is true that the railroad tracks do not occupy any portion of the plaintiff’s land, but these tracks were constructed upon an embankment which extends over and upon the plaintiff’s premises, and occupies a portion thereof of about 8 feet in width by 450 feet in length; and if the railroad is to be considered a permanent thing, which undoubtedly it is, then the use of this strip of the- plaintiff’s land by the railroad company by occupying it for embankment purposes must also, in the nature of things, be considered as a permanent use thereof, and as a permanent taking and appropriation thereof. There are some facts connected with this case which ought to have been shown, but which are not shown, or at best are not definitely shown. It would seem, however, from the pleadings, the evidence, and the findings of the jury, that the principal facts are substantially as follows: The land now in question belonged originally to A. J. Greenway. In 1872, he sold and intended to convey it to the plaintiff, Mrs. Feehheimer, but through a mutual mistake of the parties in describing the land in the deed of conveyance it was not conveyed. Mrs. Fechheimer, however, took the actual possession of the land and continued to hold the same until the railroad company deprived her thereof, in August or September, 1883. The land was of course hers when the railroad company took the possession thereof, notwithstanding the mistake made in the deed of conveyance. How soon after the time when the railroad company took the possession of the land the plaintiff commenced this action is not shown. The action may have been commenced early in August, 1883. On August 6, 1883, proceedings for the condemnation of the land for the *660extension of Orme street, a public street in the city of Wichita, were commenced by such city, and the appraisers for that purpose filed their report on September 3, 1883.
It does not appear that Mrs. Fechheimer ever had any notice of these proceedings, or that she ever received any compensation under them for any portion of her land. There were also other irregularities in these proceedings which it is not necessary to mention. On October 4, 1883, Greenway, in order to correct his prior intended conveyance of the property to Mrs. Fechheimer, executed to her a quitclaim deed for the property. On December 26, 1887, the city of Wichita gave to the railroad company the privilege of occupying Orme street in such city. The railroad company, however, had already been occupying the plaintiff’s land for more than four years. On October 25, 1888, the plaintiff filed her second amended petition. Now, it is not shown that the extension or opening of Orme street was legal or valid as against the plaintiff; but still, if it was, the defendant did not obtain any right to occupy this extension until December 26, 1887. The strip taken by the railroad company was 8 feet wide by 450 feet long; and the plaintiff below claims that this was never any part of Orme street, even if Orme street was ever legally extended and opened. In her counsel’s brief it is said, among other things, as follows:
“It is not necessary to consider whether Orme street was opened by the city; for the company occupied a portion of the land of plaintiff beyond the limits of Orme street as finally opened.”
We cannot say that this claim of the plaintiff below, defendant in error, is not true; but even if it were not true, still, under the facts of this case, we could not say that Orme street was legally extended or opened, or, if legally extended and opened, that it was so extended and opened before the commencement of this action; and we cannot sustain this claim of the plaintiff in error.
*661„ , 2. Eailroad— measuííoN damages. *660It is further claimed, that the court below erred in the admission of evidence, and in giving certain instructions to the *661jury; but the claim of error in these respects is founded principally upon the further claim that the railroad company did not occupy any portion of the plaintiff’s land, which, as a fact, is not true. The railroad company did, as a fact, occupy a portion of the plaintiff’s land, and therefore these claims must be considered as untenable. This fact gives the plaintiff the right to recover damages as for a permanent taking and appropriation of a portion of her property. She may recover for the depreciation in the value of her property caused by the permanent taking and appropriation of a portion thereof.
It is further claimed by the plaintiff in error, under the title “misconduct of the jury,” that the court below erred in refusing to grant to the defendant below a new trial. The facts upon which this supposed “misconduct of the jury” is founded are as follows : The jury were permitted to view the premises where the railroad was constructed across the plaintiff’s land; and, while there and at the plaintiff’s residence, she hauded to the bailiff a box of cigars, and he distributed them to such of the jurors as chose to accept them. The detailed facts as shown by the evidence are as follows: Mrs. Fechheimer and her husband resided upon the land. He was a dealer in cigars. While the case was pending in the court below, and before the trial, there was an uncertainty as to when it would be called for trial, and Fechheimer asked the bailiff to inform him with respect thereto, and the bailiff agreed that he would do so, and Fechheimer agreed that he would give to the bailiff a box of cigars. While the bailiff was conducting the jury from the court-room to the premises, some of the jurors suggested that they ought to have cigars, and he informed them that he would furnish them with cigars when he reached the plaintiff’s house. Reaching the plaintiff’s house, and finding no male person about the premises, he requested Mrs. Fechheimer to give him the cigars, which she did. He then distributed a portion of the cigars, and handed the box back to her, and one or more of the jurors afterward took one or more of the remaining cigars *662from the box while she held it. He stated to the jurors at the time it was his treat. During all this time not one word was said about the case, and nothing further was said or done that might in the least have influenced the jury concerning the ease; and the testimony of the only jurors who testified in the case tends to show that the jury was not influenced by anything that was said or done at that time. No one at the time thought of there being any impropriety in the transaction, or of its having any influence upon the jury.
. , , Pjry-'new tna1' Now while the giving of cigars by a party to a jury or to any member thereof during the progress of a trial is always improper and generally reprehensible, yet, unless such conduct may have influenced the jury in some manner, it shonld not destroy their - verdict afterward rendered. In this case nearly all the evidence concerning this matter was in parol, and it was heard by the judge of the trial court, who heard all the testimony given during the whole progress of the case; and evidently, he did not believe that the transaction with reference to these cigars had any influence upon the verdict of the jury, and we think it should not have had any such influence; and therefore, with some hesitanancy and some reluctance, we must say that we cannot hold that the court below erred in overruling the defendant’s motion for a new trial founded upon this ground.
After a careful examination of this entire ease and of all the points presented by counsel for the plaintiff in error, we are of the opinion that no substantial error was committed by the court below, and therefore its judgment will be affirmed.
All the Justices concurring.