The action is to recover certain lands occupied by defendant with its track, etc., and with certain railroad buildings. The plaintiffs deraigned title through a Mexican grant, upon which a patent was issued by the United States October 8th, 1872. The action was commenced June 27th, 1874.

It is admitted that for a considerable distance the railroad of defendant was constructed, and now is, upon a line different from the line or tract of land condemned to public use for railroad purposes, by proceedings initiated by defendant, and through which defendant claims to have acquired a right to the possession as against the title of plaintiffs. For the possession of the land in the occupation of defendant which was not condemned, plaintiffs herein were entitled to have judgment, unless facts were alleged in the answer, and found by the Court, which constituted an affirmative defense.

The only portions of the answer which are claimed to allege such defense are as follows:

“ And for a further and separate defense, defendant avers that it entered upon the lands in the complaint described on or about June 1st, 1868, with the license and permission of plaintiffs, for the purpose of constructing and maintaining a railway through and over the same; that thereafter the defendant, with the knowledge and consent of plaintiffs, afterwards, to wit, July 10th, 1868, surveyed and located a route for a railway over the lands described in the complaint; that afterward, to wit, on the first day of August, 1868, defendant paid to plaintiffs, for said right of way and for the privilege and right *420of maintaining a railway depot and appurtenances connected with a railway where the same is now located upon and along the lands described in plaintiffs’ complaint, for the period of fifty years then next ensuing, the sum of $5,000 gold coin, which sum was accepted and received by plaintiffs as the consideration for granting such right and privilege; and said plaintiffs did then, in consideration of such payment, grant to defendant such privilege and right of way, and thereupon defendant took possession of the route for a railway so, as aforesaid, surveyed by it, and immediately thereafter expended a large sum of money, to wit, $5,000 and upwards, in the construction of a railway track, switches, turn-table, sheds, etc., for the convenient management and operation of a railway, all of which was well-known to plaintiffs on the 10th day of September, 1868, and from thence hitherto.”

There is no finding that defendant did or did not pay to plaintiffs, on the 1st of August, 1868, or on any other day, $5,000, or any sum, “ for the privilege and right of maintaining a railway depot and appurtenances connected with a railway where, the same is now located, * * * for the period of fifty years then next ensuing,” or that the same was or was not “ accepted and received by plaintiffs as the consideration for granting such right or privilege,” or that plaintiffs did or did not “ then and there grant to defendant such privilege and right of way.”

No force is added to the findings by the statement that the consent of plaintiff Robinson was with a certain intention. The fact found is, that the buildings were erected with the consent of Robinson. The last finding amounts to no more, except so far as it consists of matters of law, as that he “ recognized ” the land in possession of defendant as “ its property,” and “ waived the error ” in the location of the railroad. Even if these matters could be treated as facts, there is no averment in the answer that Robinson had “recognized” the defendant as owner, or “waived error.”

Assuming that defendant entered on the lands of plaintiffs with the latter’s permission, there is no averment in the answer, nor any fact found, which would establish that the license was not revocable at the will of the licensers.

*421The allegations in the answer, separated from the matters alleged upon which the Court below omitted to find, did not justify a judgment in favor of defendant. The Court failed to find as to some of the averments of the answer, and did find with respect to other matters entirely beyond and without the issues made by the pleadings.

Judgment reversed, and cause remanded for a new trial.

Ross, J., and McKee, J., concurred.