prescribe the time and manner for determining such contested title. Neither of these contentions are before us for determination on either of these appeals. The question here is whether the court properly ordered the company to pay the fees of the commissioners May 18, 1891, and whether the court properly refused to modify that order June 13, 1891. The statute expressly provides that 'the commissioners shall be entitled to such compensation as the court may direct, which shall be paid by the railroad corporation.' Section 1848, Rev. St. Under this statute, and where the company institutes the proceedings, it may certainly be required to pay the commissioners' fees as soon as their services have been performed, and the amount of their compensation is fixed by the court. So the statute provides that 'in every such case the party interested in such lands may institute and conduct the proceedings to a conclusion, if the corporation delays or omits to prosecute the same, at its cost and expense.' Section 1852, Rev. St. The mere fact that the land owner instituted the proceedings does not, in our judgment, take away nor change the liability of the company. It still may be required to pay the fees of the commissioners as soon as their services are performed and the amount thereof is fixed by the court. The order of January 3, 1891, and the appointment of commissioners, is at least prima facie evidence that the title to the locus in quo was in the petitioner. The commissioners, having performed such services under such order, were entitled to their pay. The statute required the company to pay them as ordered; and the mere fact of the appeal from the award and the denial of such title did not make it improper for the court to make and enforce the order. Whether the company can recover back the fees so paid in case it should finally succeed in . defeating the petitioner's title to the locus in quo is a question not here presented." Taylor v. Chicago, M. & St. P. R. Co., (Wis., Jan. 12, 1892,) 51 N. W. Rep. 93. Award of Damages by Arbitrators. In a case of an award in expropriation proceeding under the Railway Act, R. S. C. chap. 109, it was held by two courts that the arbitrators had acted in good faith and fairness in considering the value of the property before the railway passed through it, and its value after the railway had been constructed; and that the sum awarded was not so grossly and scandalously inadequate as to shock one's sense of justice. Held, on appeal to the Supreme Court of Canada, that the judgment should not be interfered with. Benning v. Atlantic & Northwest R. Co., 20 Can. Sup. Ct. Rep. 177. WICHITA & WESTERN R. Co. v. FECHHEIMER. (Kansas Supreme Court, Oct. 8, 1892.) Amending Petition Filed Against Railroad for Taking Land.-The defendant in error, plaintiff below, filed in the court below a petition, an amended petition, and a second amended petition. What the allegations of the original petition were is not shown. The allegations of the amended petition are to some extent indefinite, but the allegations of the second amended petition clearly constitute a cause of action in favor of the plaintiff below and against the defendant below for a permanent taking and appropriation by the defendant below of a portion of the plaintiff's land for railroad purposes, and also constitute causes of action in favor of the plaintiff below and against the defendant below for trespasses upon such land. Held, than the supreme court cannot say that there was any substantial departure' in the second amended petition from the allegations of the other pleadings as to the facts stated, or that the court below erred in permitting the plaintiff below to file her second amended petition. Damage to Land by the Extension of Embankment.--Where a railroad company, in constructing its railroad, constructs an embankment upon which it places its railroad tracks, and the railroad tracks are not placed upon the plaintiff's land, but the embankment extends over and upon the plaintiff's land, and occupies a portion thereof of about 8 feet in width by 450 feet in length, held, that the plaintiff may maintain an action against the railroad company as for a permanent taking and appropriation of a portion of her land, and for damages to the extent of the depreciation in value of her land caused by such taking and appropriation. Misconduct of Jury by Accepting Gifts. The plaintiff furnished to the bailiff a box of cigars, and he distributed them to such of the jurors as desired to take them. Held, under the circumstances of the case, that the supreme court cannot say that the court below erred in overruling the defendant's motion for a new trial, founded upon the ground of this furnishing and distribution of cigars. case. ERROR from Sedgwick District Court. This was an action brought, at some time not shown, in the district court of Sedgwick county by Gettie Fechheimer against the Wichita & Western Railroad ComStatement of pany. After judgment in that court in favor of the plaintiff and against the railroad company for $1,400, the case was brought by the railroad company to the supreme court, in which court the judgment of the district court was reversed, and the case remanded for another trial. Wichita & W. R. Co. v. Fechheimer, 36 Kan. 45. After its return to the district court, the plaintiff filed an amended petition, and afterwards, with leave of the court, filed a second amended petition. In the second amended petition the plaintiff alleged, among other things, that she was the owner of certain real estate described therein; that the railroad company, about August 15, 1883, permanently constructed its railroad across such land, and committed various wrongs and trespasses with respect thereto, to the great injury of the plaintiff. This second amended petition contains five counts and five supposed causes of action. The defendant filed an answer to this second amended petition, which answer contains a general denial, and also contains, among others, allegations that the property appropriated by the railroad company was a public street in the city of Wichita, known as Orme Street," which the railroad company was permitted to occupy under and by virtue of certain city ordinances, and that none of the land entered upon or injured by the railroad company belonged to the plaintiff, and that each of the sev eral causes of action alleged in the second amended petition had accrued more than two years prior to the filing of such petition. To this answer the plaintiff filed a reply containing a general denial. Upon these pleadings a trial was had before the court and a jury, and the jury rendered a general verdict in favor of the plaintiff and against the defendant, assessing the plaintiff's damages at $1,500; and also, in answer to the following special questions of fact, returned the following answers, to wit: "(1) Is it not a fact that Starr and Burris, contractors, cut down, or caused to be cut down and destroyed, the hedge and the fruit trees, and built the embankment in question? Answer. Yes. (2) What amount of damages, if any, in your general verdict, do you allow for the destruction of the hedge? A. None. (3) What amount of damages, if any, do you allow for the destruction of the cottonwood trees and for the destruction of the shade trees? A. None. (4) What amount of damages, if any, do you allow in your general verdict for the destruction of the fruit trees? A. None. (5) What portion of the plaintiff's cabbages and tomatoes would have been destroyed by the freshet had not the embankment been built? A. We do not know. (6) What proportion of the embankment is on the twenty-five foot strip of the premises claimed by the plaintiff? A. Eight feet wide by 450 feet long on west end. (7) What amount of damages, if any, in your general verdict, by reason of the pulling up and injuring the wire fence? A. None. (8) Is it not a fact that the center line of the railroad track is 9 feet south of where the hedge was claimed by the plaintiff as being on the south side of her premises? A. Yes. (9) In operating the trains over the track, what portion of said train, if any, touches the plaintiff's premises? A. None. (10) What amount of damages, if any, in your general verdict, do you allow by reason of noise, dirt, smoke, shaking of ground, whistling, and ringing of bells in the operating of defendant's train over said track? A. None. (11) What amount of damage, if any, do you allow in your general verdict by reason of the ponds of water that have been flowed back upon plaintiff's premises? A. None. (12) Was there a mistake in the description of the south_boundary of plaintiff's premises in the original deed from Greenway to the plaintiff which was mutual to Mr. Greenway and to the plaintiff? A. Yes. (13) If you answer the last question 'Yes,' when did such mistake come to the knowledge of the defendant? A. We do not know. (14) Does Mr. Greenway admit that there was such a mistake? A. Yes. (15) Is it not a fact that on the 6th day of August, A. D. 1883, the said city, by its mayor and common council, opened and extended, for the purpose of improving the same, a certain street in said city known as 'Orme Street?' A. Yes. (16) If you answer the last question in the negative, when did they open it up, if at all? A. We do not know. (17) Is it not a fact that said Orme street extended beyond, and directly on the south, and contiguous to, the premises described in the plaintiff's petition? A. No. (18) Was the railroad built on the south of the plaintiff's premises built mainly on Orme street? A. No. (19) If you answer the last question in the negative, on what premises was that portion of the railroad lying immediately south of plaintiff's premises built? A. A. J. Greenway's. (20) Is it not a fact that said Orme street was opened, widened, and extended to the Arkansas river some time during the month of August, 1883? A. No. (21) Did the city of Wichita, by its mayor and common council, by an ordinance enacted and passed on the 19th day of July, 1883, grant to the defendant the right to construct a railroad track down Orme street from the east line of said city due west on the Arkansas river? A. We find that the mayor and the common council of the city of Wichita passed an ordinance of this character, but we further find that Orme street was not opened from Water street to the Arkansas river; that part of said ordinance relating to that part of Orme street is invalid. (22) When was the said Orme street extended to the Arkansas river, if at all? A. We do not know. (23) When was the said Orme street occupied by defendant, if at all? A. We do not know. (24) What portion of plaintiff's premises, if any, was actually occupied by the defendant the time of the commencement of the action or before, if any? A. Eight feet by 450 feet on north side of embankment on west end of premises. (25) What portion of the damages, if any, do you allow plaintiff in your general verdict for the destruction of the hedge fence and trees by the defendant? A. None. (26) What portion of the damages do you allow the plaintiff in your general verdict by reason of the occupation of a portion of the premises by the defendant, if any? A. None. (27) What damages do you allow in your generab verdict by reason of the alleged overflow of plaintiff's premises and the destruction of the garden, if any? A. None.. (28) Is it not a fact that the only portion of defendant's railroad which is actually upon the twenty-five foot strip claimed by the plaintiff to have been appropriated by the railroad is the earth on the north side of an embankment, which spreads out on the average of about eight feet in width for about 450 feet on the west side of plaintiff's premises? A. Yes. (29) Is it not a fact that no part of the ties or rails of the said railroad is upon plaintiff's premises? A. Yes. (30) What amount, if any, do you allow in your general verdict for the strip of earth in the embankment which is on the twenty-five foot strip in question? A. None. (31) Was the bridge and the embankments approaching the bridge properly constructed? A. We do not know. (32) If you answer the last question in the negative, state in what respect said embankment and bridge were not properly constructed. A. We do not know." The court rendered judgment in favor of the plaintiff and against the defendant, in accordance with the general verdict, and the defendant, as plaintiff in error, again brings the case to this court for review. George R. Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error. Stanley & Hume, for defendant in error. 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 railroad 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 rail road. The first alleged error is as follows: "The court erred |