the clerk of said court a written notice, of which the following is a copy:

"To the Superior Short Line R. R. Co. Take notice that John P. Larson, John G. Peterson, Anthony Gallagher, and Charlotte M. Coburn, severally and each for himself, appeals to the circuit court from the award of the commissioners fixing the amount of compensation to be paid each of them by said Superior Short Line R. R. Co., for land taken by said company to be used in the construction of a portion of its line of railway, and for damages to land adjoining the land so taken, and filed in the office of the clerk of said court on the twenty-ninth day of May, 1884.

[Signed]

"JOHN P. LARSON.

"JOHN G. PETERSON.

"ANTHONY GALLAGHER.

"CHARLOTTE M. COBURN.

"By CHAMP GREEN, attorney for each of said appellants."

That upon filing said notice the clerk of said court entered upon his docket four suits, entitled substantially as follows: John P. Larson v. Superior Short Line R. R. Co., John G. Peterson v. Same; Anthony Gallagher v. Same; Charlotte M. Coburn v. Same. That after such notice of appeal had been filed, and said actions entered upon the docket of said clerk, the company settled with Peterson for his damages, and had some negotiations with the respondent for the settlement of his claims, but no settlement was made, and afterwards, and on the fifteenth day of December, 1884, a motion was made by the railroad company to dismiss the respondent's appeal, which was denied, and the company appeals to this

court.

It is claimed by the learned counsel that the appeal should have been dismissed(1) because it was an attempt to base four separate and distinct actions upon one process; (2) because the appeal is bad for duplicity, in that it attempts to take up four separate and distinct judgments by one appeal; (3) the appeal is bad for uncertainty, in that it fails to state the subject-matter appealed from, and is misleading."

OF

JOINDER SEVERAL

The first and second objections relate to the joinder of the several separate owners of the lands and of the damages awarded therefor in the notice of appeal. It is, perhaps, a little out of NOTICE OF APthe ordinary way of taking appeals in such cases to join PEAL separate owners as appellants in the same notice; but PERSONS. when the notice on its face shows that each party gives the notice separately, and on his own behalf, and not in behalf of another, there does not appear to be any grave objection to such notice. Certainly each of the parties, whose name is to the notice, gives the notice required by section 1849, Rev. St. It is a written

notice of appeal, which the clerk of the court and the company can understand, as well as though four separate notices had been made out and filed with the clerk.

AWARD OF COM

A NEW SUIT.

It is not strictly correct to say that this notice of appeal is the commencement of an action in the circuit court by each appellant against the railway company. The statute does not say so, and it is not so in fact. The parties are already in court beAPPEAL FROM fore any appeal is taken, by reason of the proceedings MISSIONERS NOT before had on the petition of the company. On filing the award of the commissioners, each separate award has the effect of a judgment in favor of the owner of the lands against the railway company; and if the company fails to pay the amount so awarded, the owner may have execution thereon against the company for the amount so awarded. See section 1850, Rev. St. 1878. The notice to be filed with the clerk is not a process to bring the parties into court, for they are already there. Its sole object is to advise the opposite party that the party giving the notice is not satisfied with the award of compensation and damages made by the commissioners, and desires to have a new award made by a jury and the court. When such notice is given, the statute says: "The appeal shall be considered an action pending in court," etc., not an action commenced in such court. The original petition filed by the railway company, asking for the appointment of commissioners to fix the compensation and damages which it shall be compelled to pay in order to take the desired lands, is the commencement of an action against all the owners of the lands desired by the company. In that action the company is the plaintiff, and all the owners the defendants (see section 1847, Rev. St.), and the award of the commissioners has the effect of a judgment against the company in favor of cach separate owner. Section 1850.

The strict rule which applies to appeals from the judgments of one court to a higher or appellate court should not apply to a case of this kind when the case is already in the court, and where a new trial is sought to be had in the same court. We think the notice was sufficient, and that the clerk of the circuit court was right in entering in his docket an action in favor of each of the appellants against the railway company.

PIECES OF LAND
ONE NOTICE OF

There does not appear to be any great force in the other objection that the notice of appeal is not sufficiently certain, WHERE SEVERAL because the award shows that Larson was awarded APPEAL ENOUGH. damages for taking parts of separate and distinct parcels of land. We think it would be intolerable and unjust to require the owner of a dozen or more separate lots, parts of which are taken by the company, to bring a separate appeal for each lot, and if he could and should do so, it is very clear the court would direct but one trial for all the damages claimed. See Washburn v. Railroad Co., 59 Wis. 364-378; s. c., 20 Am. & Eng. R. R.

Cas. 225. The notice of appeal in this case is sufficiently certain. It is an appeal from the award made to him by the commissioners for all the lands taken by the company which are described as owned by the plaintiff in such award, and, so far as the record is concerned, it does not appear that the respondent makes any claim for damages except as to those lots which are described as his in the petition, and for the taking of which he was awarded damages by the commissioners.

We think there was no error in refusing to dismiss the appeal of the respondent in this case. The order of the circuit court is affirmed.

CHANCE

v.

EAST TEXAS R. R. Co.

(63 Texas, 152.)

The necessity for obtaining an order of record in term time, for the approval and filing of a statement of facts after the adjournment of the term, again announced.

A railway company seeking an injunction against a defendant, to prevent interference by him with a right of way across land which the company claimed the right to enjoy, alleged that the company owned the right of way across an original survey before defendant acquired title to a subdivision of it, and that defendant's vendor received a deed for the portion claimed by him which contained an express reservation to the company to the right of way. The petition also alleged that plaintiffs had been in the constant possession and enjoyment of the right of way for a period of more than twentyone years, except as obstructed by defendant's wrongful acts. Held, on demurrer :

(1) That these allegations set forth a case of absolute title to the easement, independent of any claim of title by prescription or long possession. (2) The allegations of long possession must be construed as intended to negative the idea of forfeiture by abandonment or non-user of the easement. (3) The easement being acquired before the subdivision of the survey, it was unimportant whether a tax-deed to a subdivision of the land, under which defendant claimed, was valid or not.

(4) The right to the easement being sufficiently set forth, it was unimportant whether the plaintiff stated facts sufficient to entitle it to the right of way by mere prescription.

APPEAL from Hardin. Tried below before the Hon. Edwin Hobby.

This suit was brought by the East Texas R. R. Co. against the appellant Chance and others, to enjoin their interference with a right of way claimed by plaintiff. The character of the claim is set forth in the opinion. Various exceptions to the action of the

court were relied on, now deemed unimportant to notice, in view of the statement of facts being illegally filed and of the opinion of the court.

No briefs on file for appellee.

WILLIE, C. J.-The statement of facts found in the record was approved and filed after the adjournment of the term of the district court at which this cause was tried, and no order allowing PLEADINGS. this to be done was granted by the court. A motion has been submitted with the cause to strike the statement from the transcript, and for the reasons above stated the motion must prevail.

The only assignments of error that we can consider without a statement of facts are the two first, which bring in question the action of the court in overruling the general and special demurrers to the plaintiff's petition.

From the brief and argument of appellant's counsel, it seems that the ground upon which his general demurrer is sought to be supported is that the petition shows no title in plaintiff in the right of way over the entire one third of a league granted to Perito. It is claimed that the plaintiff's title rests alone upon prescription and twenty-one-years' user and enjoyment. This objection, too, is made the subject of one of the special exceptions.

We do not so understand the petition, nor is this a legitimate deduction to be drawn from its allegations.

EASEMENT-SUB

CHASERS TAKE

SUBJECT TO.

It is plainly and distinctly charged in the petition that the plaintiff, or those under whom it claims by assignment, were the owners of the right of way over this entire tract long previous SEQUENT PUR to the time when the title to the three hundred and fifty acres, claimed by the appellant Chance, had been severed from the title to the balance of the tract. Of course all conveyances of any portion of the tract, made subsequent to the acquisition of this easement, were subject to the privilege of the plaintiff to enjoy it over the portion of land conveyed, if in the line of the right of way thus acquired. The petition in fact alleges that the person who originally received from the owner of the entire one-third league a conveyance of the three hundred and fifty acres claimed by Chance, took it with an express reservation in the deed of this right of way in the plaintiff. It further states that the plaintiff's road had been constructed as far back as 1859 on this right of way, and that plaintiff and its assignors had been in the constant use, possession, and enjoyment of the right from that time to the date of filing the suit-a period of more than twenty-one years-except so far as obstructed by the wrongful acts of the appellant.

These allegations make out a clear case of absolute title to the easement in the plaintiff, independent of any claim of title by pre

scription or long possession. These latter allegations were evidently added for the purpose of showing that the right originally acquired had not been forfeited by non-user, or failure to construct and operate the plaintiff's railroad over the land. A general allegation of title was sufficient, at least as against the pleadings of the appellant, and no superadded averments introduced, not for the purpose of showing title, but that it had not been lost, and that the right of possession still existed, could qualify or weaken a right alleged to have been acquired before or at the time such possession commenced. Whether or not the plaintiff alleged sufficient facts to show itself entitled to the right of way by user and prescription is not therefore a question in the case.

The plaintiff having shown by the averments of the petition that it had a perfect right to the easement as against all persons claiming under the original purchaser of the three hundred and fifty acres of land to which Chance set up title under the tax-deed, and Chance's title being derived, if at all, under such purchaser, it was unimportant whether the tax sale upon which Chance's deed was founded was legal or void.

He might have had a perfect chain of transfers from Ruff and Denman, and yet he would have held the land subservient to the plaintiff's right to operate its railroad over and through it. Hence all averments as to the illegal manner in which Chance had procured a tax title to the land were superfluous and unnecessary, and, if stricken out, the petition would have been good without amend

ment.

It is unnecessary, therefore, that the special demurrer relating to the want of proper allegations in the petition as to fraud in the tax-deed should receive our consideration.

We are of opinion that the demurrers were properly overruled; that there was no error in the judgment, and it is affirmed. Affirmed.

HOPE

v.

NORFOLK AND WESTERN R. R. Co.

(79 Virginia, 283.)

C., in 1851, conveyed to N. & W. R. R. Co. "all right, title, interest, and estate of, in, and to so much of her land in W. county as may be laid out for the construction of its railroad," to wit, a strip eighty feet wide and containing nine acres. Of said land C. was only tenant for life, with remainder in fee in H. In 1881 C. died. No steps were taken by said company to acquire said right of way, except taking conveyance from C. Within three years after C.'s death, H. brought unlawful detainer against said company for this land. Held: