This is an action of ejectment instituted by the appellant January 19th, 1891, against the appellee to recover possession of that part of Rose street in the ■city of Palatka lying between the center of the street .and Blocks numbered 212, 213, 214 and 215, according to John Dick’s map of that city, such blocks abutting on the west side of that street. There was trial by jury .resulting in a verdict for the defendant and judgment thereon.

There is testimony tending to show that the occupation of the street by the defendant with its railroad was by consent of the plaintiff, and it is of such a character as to preclude any disturbance of the verdict, although there is evidence of a contrary import (P. & A. R. R. Co. vs. Jackson, 21 Fla., 146; Garnett vs. J., St. A. & H. R. R. Co., 20 Fla., 889; J., T. & K. W. Ry. Co. vs. Adams, 27 Fla., 443, 9 South. Rep., 29; 28 Fla., 631, 10 South. Rep., 465; moreover it is clearly *608shown by the record that the appellant had sued appellee in trespass to recover damages for constructing its road on said street. Such a suit in trespass has, to-the extent of being inconsistent with the right to maintain a possessory action against the company, the effect to operate as a consent to the use of the street in operating the railroad in a proper manner or with due care. J., T. & K. W. Ry. Co. vs. Lockwood, ante, and authorities supra.

For the reasons stated the judgment will be affirmed.