Opinion.

The pending of the suit in chancery was no obstacle to the institution of proceedings in pursuance of the charter of the appellee for the condemnation of the right of way. This proceeding seems to have been in strict accordance with the charter, and its effect was to vest the right of way in the appellee, and mutually to put an end to the controversy involved in this suit. The amount of compensation awarded by the jury in the proceedings to condemn the right of way was deposited with the clerk, and also was offered to the appellant by the appellee in its answer. The appellant could have called for and obtained the money thus tendered, and cannot object that the compensation awarded was -.not made.

Whether the sum awarded was enough, and what were the' •elements of the estimate of damages by the jury, is not before us. That is involved in any appeal which may have been taken from the finding of the jury as provided by the charter. All that we •decide is that the proceeding for condemnation appears on the face of the papers to have been according to law, and that the legal effect was to put an end to the controversy between the parties to the suit, and that the Chancellor properly disposed of the case. The declaration of the decree as to the nonliability of the appellee,.for the value of the cross-ties and rails, whether correct or not, is not properly in the decree, and is not, therefore, res judicata. We express no opinion upon that question. If an appeal was taken from the finding of the jury, all questions pertaining to the inquest of damages properly arise in that appeal.

Affirmed April 27, 1885.