(alter stating the case). The Court did not err in refusing to instruct the jury that the plaintiff could not recover because he had shown no title to the land on which *49the trespass was alleged to have been committed, nor in explaining to the jury that the testimony of the witness Terry, admitted without objection, was some evidence of title. But his Honor did not stop there. He added, that “if the land described in that proceeding (referring to the-proceeding to condemn the right of way) is the same land described in the complaint, the defendant is estopped to-deny the plaintiff’s title.” If the record shows that the order of condemnation applied to the land upon which the-plaintiff alleges that the fire originated, then the instruction given left the jury no option or discretion. Even if the jury had discredited the testimony of the witness Terry (and we have no right to assume that they did not), still the fact is stated, as admitted, that the proceeding was instituted “to condemn a right of way through the lands on which the burning com/plained of occurred.” If, therefore, the jury adopted the view of the law applicable to the case that was enunciated by the Judge, they were bound to decide that the defendant company was concluded as to the question of title, by said record. If the language quoted from the charge is not unequivocal and clearly susceptible only of the construction given, the fact that the Court, in the next sentence, assumed that the proceeding covered the same land as that described in the complaint, and explained to the jury that the effect of the order of condemnation was to give the defendant an easement and not to divest the title out of the plaintiff, leaves no doubt that the language of the Court has. been interpreted according to its true import.
The third exception extends not only to the instruction-refused, but to that given as a substitute. Conceding, then,, that the defendant must clearly point out'the error complained of, the record, as amended' by consent of parties in this Court, shows that Timothy Ely, Harvey Terry and J. F. Davis were made defendants in said proceeding as claimants. *50of the land, that the right of way has been condemned and the amount of the damage paid into Court “to await termination of controversy as to title of the property, the same being in litigation in this Court.”
Under the provisions of the general law (The Code, § 1944), the petitioner in cases of this kind (whether it be a claimant or owner of the land, or the company) is required to set forth in the petition “the names and places of residence of the parties, so far as the same can, by reasonable diligence, be ascertained, who own or have or claim to own or have estates or interests in said real estate” The same section requires that the petition must be served on all persons whose interests are affected by the proceeding. Section 1947 of The Code provides, that when there are “adverse and conflicting claimants,” the Court may direct the money to be paid into Court, and proceed to determine vrho is entitled to receive it. In the absence of any evidence as to the provisions of the charter of the defendant company, we may assume that the petition was filed and the subsequent orders made under the provisions of the general law, as it would have been certainly proper to do so if there was no course of procedure in such cases provided for in the charter, or none that conflicted with the section referred to.
If we conclude, after a careful review of the testimony, that the plaintiff Ely and the witness Harvey Terry are not .adverse claimants of the title and condemnation money, but represent one claimant under two names, there can be no ■doubt that, according to the record, J. F. Davis is litigating •with the other two, and it has not been determined by the ‘Courts who is the owner. Suppose, then, that Davis should begin an action precisely the same in form as that brought by the plaintiff Ely, should offer the same record of the proceedings to condemn, and the same admissions should be made as to the identity of the land described in the complaint and in the petition, would not the defendant company *51‘be estopped to deny the title of Davis, if the law has been correctly stated by the Judge in this case? But, we suppose, if it is admitted that we have properly construed the language quoted from his Honor’s charge, it will not be contended that a record which shows certainly that Davis and Ely both claim title to a tract of land, and the litigation between them is not yet determined, shuts the mouth of the defendant company, a party to the same record, to deny that Ely is the owner. It is not necessary to cite authority upon this point, because the only question raised on the argument was whether the interpretation that we have given to the Judge’s charge is correct. Indeed, the record shows conclusively that the title was not adjudged to be in the plaintiff.
The defendant’s counsel contended, too, that there was error in the refusal of the Court to submit any other issue than that passed upon by the jury, and which, with the answer, was as follows :
“ Has the plaintiff sustained damage by the default and negligence of the defendant? Yes.”
Without deciding or even discussing the point, we may suggest that an objection may be obviated on the next trial by framing, under each separate cause of action as to which conflicting testimony may be offered by the parties, an appropriate issue.
For the error pointed out the judgment must be reversed and a new trial had in the Court below.
Error.