It may be conceded that the description of the land sought to be condemned should have been more specific, and that the petition was subject to the defendant's demurrer, especially ground 7, page 17, but the defendant took no cross-appeal, and this ruling is not therefore subject to review. The trial court, in effect, held that the petition was sufficient, and permitted the petitioner to establish the identity of just what lands of the defendant condemnation was sought by proof of what part of the premises the petitioner already owned or held a release from any damages growing out of the construction of the old dam. In other words, the plaintiff held, under a conveyance, the land and a release from damages from this identical defendant as was covered or flooded by the construction of the dam as first constructed and which seems to have been fixed by the evidence as that space between the river and a contour line of 335 feet above the datum. This proceeding was therefore to condemn that part of said land as situated between contour line 335 and 350 feet which would be submerged or flooded by raising the dam several feet above its original height, and the question involved was the amount and value of the land between these two contour lines, and not the area or value of any land between the 335 line and the river. Indeed, the judgment of condemnation relates to this space, and the evidence as to value should have been confined thereto and not included other territory to which the petitioner held title or a release from damages. The trial court therefore erred in not giving the appellant's requested *Page 573 charge set out in the twenty-second assignment of error.
True, there was some evidence tending to show that the water or overflow extended above the 350-foot line, but this issue was eliminated by the trial court in ruling upon the pleading and the evidence, and, having so ruled, should have confined the proof to the space involved, and should have given the charge above mentioned.
While the judgment of condemnation was only for the space mentioned, we cannot say that the jury did not consider the area and value of other land in the fixation of damages, especially in view of the trial court's refusal of the charge limiting them to said space and permitting evidence as to the value of the land below as well as above contour line 335.
Since this case must be reversed, we suggest that the issue can be simplified by the production of a survey or measurement by experts as to the quantity of land between the two lines instead of by guesswork on the part of nonexpert witness as to the number of acres and wherein there has been a gross and irreconcilable difference.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SAYRE, THOMAS, and BROWN, JJ., concur.