The abandonment of an intention by a lease holder to stop a railroad company by injunction from appropriating to its use the premises leased, even though the company was in possession, with the consent of the owner of the fee, and was proceeding to have the same condemned, under the provisions of its charter, to its use, the leaseholder being no party to such proceedings, and he, at the time of no. tifying the attorney of the company of his purpose not to institute a bill on the equity side of the court to obtain an injunction, also informing him that he would resort to an action of law to recover damages for *238the unwarrantable appropriation of the land, did not, in law and in fact, amount to a consent that the company might enter before ascertaining the value of his property thus appropriated and paying for the use of the same, and did not defeat the leaseholder’s action to recover-in that suit damages for the trespass.

(a). There was manifest error in awarding a non suit in this case..

Judgment reversed.