■ Error from Allen District Cowrt.

■ Replevin, brought by C. H. Pratt against M. S. Carter and A. J. French, on February 28, 1878, for fifty thousand pounds of bars of railroad iron, of the value of five hundred dollars. Trial at the June Term, 1878, bythe court, a jury having been waived. The court made the following findings of fact:

1. That the iron in controversy was laid by the Fort Scott, Humboldt & Western railway company, and upon a roadbed permanently constructed by said company.

2. That the construction of said road-bed and the laying of the iron thereupon was done by said company during the summer and fall of 1871, and was upon the lands of the plaintiff, owned and cultivated by him at that time, and continuously therefrom owned by him until the present time, and partially cultivated by him during all said time except for one year.

3. That the construction of said road-bed and the laying of the iron thereupon was with the knowledge and consent of the plaintiff, but with the expectation by him that the said railroad company would pay to him full compensation therefor or cause the land appropriated by it for that purpose to be condemned according to the law of the land.

4. That the iron so laid was'spiked to cross-ties first placed upon said road-bed, and the placing of the ties and the spiking of the iron rails thereto was done in the same manner that is usual to new railroads.

5. That the iron so‘laid remained as it was laid by said company, until the 11th day of January, 1875, when the plaintiff, between that time and the 1st day of May, 1875, loosened it from the ties and placed it in piles upon his own lands and upon the same tract of land through which the road-bed was constructed and on which the iron was laid by said company.

6. That the said road-bed and iron have never been used by the said railway company, or by any other railroad company or person, as or for a railroad, and neither has any portion of the road-bed or iron constructed and laid by said company at any other place along the line of the said proposed railway been used for any such purpose.

7. That a short time before the commencement of this suit the defendant French, acting as agent and representing the ■defendant Carter, applied for permission to remove the iron so piled up by him; that plaintiff refused the request except he was first paid therefor, and that French thereupon stated to plaintiff’ that he would not remove it until it was settled for.

8. That the iron loosened and piled up by plaintiff as .aforesaid, remained as aforesaid until the 28th day of February, 1878,. when the defendant French, acting as agent for and representing defendant Carter, went upon said lands of plaintiff with men and teams, and took possession of and removed said iron without plaintiff’s knowledge or consent.

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