Opinion of the court by

Plaintiff in error claimed that this case was tried by the court below upon the theory that the railway company obtained a fee simple title to the right of way taken, and instructed the jury upon this theory. This is the only error assigned on which a reversal is sought. On an examination of *566 the record, we find this case to be exactly on the same point and involves exactly the same principles as ease 1207, Guthrie & Western Railway Company v. Faulkner, decided at this present term, and reported in this volume, and for the reasons therein given, and the views therein expressed, this case is affirmed, at the cost of the plaintiff in error.