The State of Iowa ex rel., Alderson v. Jones, County Judge, et al. of a paper which is not a part of the record. It can be brought to the appellate court only by bill of exceptions. Garber v. Morrison and White, 5 Iowa 477; Whitney v. Olmstead, 5 Ib. 373; Rawlins et ux. v. Tucker, 3 Ib. 213; Talty v. Lusk, 4 Ib. 471; Harmon v. Chandler, 3 Ib. 151. The appellant was not a party to the record. The appeal can be taken only by a party. Davis County v. Horn, 4 G. Greene 94; Code of 1851, section 1973. BALDWIN, J.-The first, and most important question to be determined, is whether the record (admitting the correc tion upon the court record to have been properly made) discloses any such ruling upon the application of Moore to set aside the report of the canvassers, as could be appealed from, or that in any manner shows his right to appeal. The amended record shows that he offered to file a motion and affidavit, but was refused that right, to which he excepted. No bill of exceptions was signed by the court, nor does such motion in any manner appear to have been a matter of record except by the certificate of the clerk, in which it is stated that the exhibit attached to the amended transcript, marked "A," was the motion referred to in the record as made by Moore. It cannot be made a part of the record in this way. The mere certificate of a clerk, that a paper copied into the transcript is part of the record of a cause, is not of itself sufficient evidence of that fact. If it is not such a paper as is, by the provisions of the statute, part of the records of a cause, it can only be so made by order of the court. "Any paper used, or proceedings had in the District Court, rot made part of the records by statute, must be embodied in a bill of exceptions. Harmon v. Chandler, 3 Iowa 152; Garber v. Morrison & White, 5 Ib. 477." An entry by the judge of the court, in his private calendar, or even by the clerk, in his record, that a ruling was made, that an exception was taken to such ruling, is not such an exception as is contemplated by law, or as would give the party any rights by such exceptions. It is merely a memo The State of Iowa ex rel., Alderson v. Jones, County Judge, et al. randum for the convenience of the court, and to satisfy him, when a bill of exceptions is duly presented that the party did except at the time when such ruling was made. But we cannot conclude that the entry made by the court in May, 1859, was authorized by law. "Entries made, approved and signed at a previous term, can only be altered to correct an evident mistake." Code, section 1580. The docket of the judge presiding when Moore's application was made, showed sufficient to have satisfied his successor that such application was made, refused and such ruling excepted to, but the record of the court is silent on this subject. There was no entry made to be corrected. If it was the entry in the main cause that the court undertook to correct, the inquiry then arises, was there any such mistake in that entry as would justify the court in amending it that length of time after it was made? We think not. There was no order in reference to the application of Moore a proper subject of entry until he had completed his bill of exceptions, and filed the same. Having failed so to do, the court had reasonable grounds to presume that he had abandoned his objections to its ruling and submitted to its correctness. Entertaining this view of the record, we think that the portion thereof relating to the motion and affidavit of Moore and the exhibit thereto attached, is not properly a part of the record of this cause, and should be stricken therefrom. This portion of the record being expunged, there is no order or judgment of the court that Moore could appeal from. But admitting that the record as claimed by the appellant is true and properly here we cannot consider that there was any ruling of the court below, from which Moore could appeal. Moore was not a party to this proceeding either as plaintiff or defendant. Nor had he ever asked to be made a party thereto. If he had such an interest in the result of the proceeding as would justify him in moving to set aside the order of the court, he should have asked leave to have had himself substituted as plaintiff or defendant. Until he Preston et al., v. The Dubuque and Pacific Railroad Company. was thus made a party he was in no manner liable for costs, nor could he interfere with rights of the original parties. We also conclude that the appeal was not taken in time. The judgment of the court was rendered upon the 27th day of April, 1858. The notices of appeal were served on the 28th day of April, 1859, not within one year from the date of the judgment. Without passing upon the questions presented by appellant, as to whether the alternative writ was properly issued, or whether the re-canvass was correctly made, or whether such re-canvass in any manner affected the validity of the first canvass, we have concluded that the record does not disclose any right in Moore to appeal. Motion to dismiss the appeal sustained, PRESTON et al. v. THE DUBUQUE AND PACIFIC RAILROAD COMPANY. 1. RIGHT OF WAY: TIMBER. The title to the timber standing on land appropriated to a railroad company under the provisions of the "Right of way act" (chapter 31, Laws of 1853), remains in the owner of the soil; and the company have a right to take and remove only so much thereof as may be necessary for the construction and repair of the road and its appurtenances. 2. "CONSTRUCTION." The word "construction" as used in the "Right of way act" implies not only the making of the road bed, but also its preparation and readiness for use in a safe and convenient manner. Appeal from Dubuque District Court. SATURDAY, OCTOBER 6. THE jury in the District Court allowed plaintiffs $500 for the "Right of Way" asked by the Railroad Company over their lands. The court instructed: "If the strip appropriated by the railroad company is timber land, the jury will consider the fact in estimating the damages, and that the railroad take with the appropriation of the land the right to Preston et al., v. The Dubuque and Pacific Railroad Company. destroy or appropriate the entire timber on the strip, if the company should deem it necessary or convenient so to do," to which defendants at the time excepted. A motion for a new trial was made upon the ground that this instruction was erroneous, that the verdict was excessive, and against the law and evidence. This motion wast overruled and defendants appeal. J. A. McKinlay and S. P. Adams for the appellants. J. S. Blatchley for the appellees. WRIGHT, J.-The error in this instruction lies in this: that it gives railroad companies a right or privilege not conferred by the Right of Way Act," (Ch. 31, Laws of 1853,) and as a consequence, increases their liability beyond the proper legal measure. In other words, it makes them pay for that which they have no right to take. When a railroad company, under the laws of this State, acquires the "Right of Way," whether by purchase, or the assessment of damages by a jury, there follows with it the right to take, remove, and use for the construction and repair of the road and its appurtenances, any earth, gravel, timber or other materials on or from the land so taken. (Section 1, Ch. 31, Acts of 1853.) The extent of the right to appropriate the timber, &c., on the strip of one hundred feet in width, is thus limited by the necessity existing for their use for the purposes of construction and repairs. If the instruction in this case had used only the language, that the company had the right to appropriate the timber on the strip if deemed necessary or convenient, it would have been little, if any, objectionable, when, or if taken in connection with the further thought, that such appropriation was to be for the purposes named in the statute. But even when thus considered, it is liable to the construction, that such appropriation might be for any purpose deemed necessary or convenient by the company. And this certainly is not the Preston et al. v. The Dubuque and Pacific Railroad Company. meaning of the law. The company has no right to determine the necessity for the use except as connected with the two objects named in the Act. But if we look at the instruction a little more closely, it will be found to be still more objectionable. Under it, the jury could give damages, in view of the fact that the company had the right to destroy the entire timber on the strip if deemed necessary or convenient. This language, it seems to us, loses sight of those rights which are surrendered on the one hand by the proprietor of the land, and acquired on the other by the company. By this appropriation the public, or in this instance the company, acquires only the right of way. The property in the soil and the timber growing thereon remains unchanged, except that the company may in some instances, if necessary, for the purposes named in the statute, appropriate the timber found thereon. The right of property in the timber, is, however, not necessarily changed by the appropriation, any more than that in the soil. And there is certainly no warrant any where for the conclusion that such appropriation gives the right to destroy the timber. Unless necessary for the purpose of construction or repairs, the proprietor may remove the timber and use it as his own; it being understood by the word construction as here used, more is meant than the mere making of the road bed. The construction of the road implies its preparation and readiness for use; and not only so, but its use in a convenient and safe manner. Hence, though such timber might not be necessary for the construction of the track, it might be necessary to remove it for the safe running of the locomotive and cars. The right to thus remove, does not, however, carry with it the right to destroy, nor yet to appropriate it to the use of the company for the purpose of firewood or the like. Deaton v. Polk County, 9 Iowa 594; Henry v. Dubuque & Pacific Railroad Company, 2 Iowa 288. We have had much difficulty in concluding that this case should be reversed, from the fact that other instructions |