T.
The opinion of tho Court was delivered by
Watkins, J.
Plaintiff is the owner of 950 acres of huid situated on Honey Island, between East and West Pearl rivers, in Louisiana, on which ho resides, and of about 170 acres on tho east bank of East Pearl river, opposite the former, in the State of Mississippi. He is a farmer, and engaged in stock raising. He alleges that these lands were worth $50 per acre in 1882. That during that year, the defendant company commenced and constructed their railway through a portion of said Louisiana tract of land, that is to say, the south half of section thwtyeiyM of township seven, of range iifteen, containing 320 acres, and extending diagonally through it from the southwest to the northeast corner, on the west hank of East Pearl river — thus leaving, of the whole, three hundred and twenty acres south and west of the road, and six hundred and thirty north and east of it.
Petitioner avers that defendant company entered upon the lands without his consent and against his protest, and threw up an embankment from seven to twelve feet high, and occupied for their right of way a width of one and one-half acres of his land, for a distance of twenty-two acres, making' an aggregate of thirty-three acres in quantity, and of the value of $1650, and has since used, and now uses and occupies the same.
He further avers that the defendant’s embankment extends across Honey Island, from East to West Pearl rivers, a distance of six miles, and that it has impeded and destroyed the natural flow, and escape of the flood-waters which frequently come down Pearl river, as well as the surface waters in time of rains; that it has stopped up the. natural drains existing thereon, known as Roan’s bayou, and Bridge bayou, and thereby destroying the drainage into and through the same; that this impediment has caused his lands to overflow and their value destroyed for agricultural purposes, and as a suitable pasture for hogs and cattle, and rendering his avocation hazardous and attended with great loss of cattle, etc.
lie alleges that these lands were very fertile and produced large crops of corn, sugar cane, rice, peas, and potatoes; about one hundred and fifty acres were arable, and three hundred and fifty more were under fence; [367]*367all of said lands (other than the lands just described) were cane bottom timber lands, specially adapted for grazing cattle, and as a range for hogs; and, being more elevated than those adjacent, they afforded a “ safe refuge for cattle and hogs in time of high water, and freshets.”
The petitioner then particularizes and specifies the various different items of damage he has sustained, in consequence of the construction and maintenance of said embankment', and which aggregate $11,850, in addition to the value of the right of way, specified above.
The defendant first tendered a plea of prescription, and, it having been passed upon, it filed an answer declaring, that it had constructed an usual and customary road-bed across Honey Island, under the law, of only sufficient size and height to be above, and withstand the floods which frequently cover said land. That it crosses said land in such way as to offer the least possible resistance to overflow, or other water, and at a cost of maney thousands of dollars more than the value of the land. That the plaintiff knew of the construction of said embankment, which was many months in course of construction, and did not take any legal action to prevent it. It denies that any of plaintiff’s alleged complaints were ever made to any person duly authorized to rex>resent the company, and that “same should have been made to the president, or other legal representative of the corporation, and not to a subordinate; and if there was a difference of opinion as to the effect of the public work about to be constructed * * upon the drainage or water-flow , * he should have provoked and obtained a legal interpretation of his rights, in time %o prevent the construction of the work complained of.”
It avers that the bayous which are alleged to be closed up are not bayous or running streams, but mere gulleys, and not natural drains, in any sense of the word. That Honey Island is a very low tract of land, which has been subject to annual inundations, “ ever since the memory of man.” That people who own and graze cattle on this island, remove them, every season of overflow, to the high land east of Pearl river, as a place of safety.
That persons who plsuit crops of any kind on that laud take the chances of having them destroyed, and that such has always been the case since the island was first settled. That the overflow upon said land is equal and uniform, submerging it above and below its road, which adds nothing to its height, or to the force of the water’s current, and that it remains upon the land only for a short while at a time, passing off when the river runs down.
Defendant avers that, instead of plaintiff’s lands being worth fifty dollars per acre, same are not now, and never have been, worth [368]*368more than fifty cents per acre; and denies that there is now, or ever has been any valuable pasture on plaintiff’s land, or that the company ever promised him anything for the insignificant strip that was necessarily appropriated for a road-bed.
The case was submitted, in the court below, without argument, and the jury rendered a verdict of $7500 for the plaintiff, and found that the embankment complained of, constitutes a continuing obstruction to the natural drainage of plaintiff’s land, and that the defendant ought to be condemned to reopen such natural drainage, by the removal of said embankment, or otherwise.
The defendant made a motion for a new trial, and, when it came to be heard, the judge a quo signified that the verdict, in his opinion, was excessive, and plaintiff’s counsel entered a remittitur of the amount of the verdict in excess of $1000, for which sum the judgment was signed, and therefrom the defendant appeals.
Counsel for plaintiff contends that this was a case of a remittitur entered under judicial compulsion, which does not estop Mm from having it set aside, and recovering the full amount of the verdict. But, in consideration of the views we entertain of the merits of this controversy, it is unnecessary for us to discuss this interesting question.
II.
As a satisfactory classification of the demands of the plaintiff, as represented by the verdict of the jury, we will collate them from his counsel’s brief. They are as follows, viz:
1. Oat crop destroyed in the spring of 1886.
2. One horse and one mule drowned in 1886.
3. Value of right of way over forty-three and one-third acres of land.
4. Loss of rent of fifty acres of cleared land for the year 1886.
5. Injury to 900 acres of land by washing.
6. Pour hundred acres denuded of vegetables by the overflow of 1886.
7. Destruction and deprivation of pasturage for 1000 head of cattle, during the overflow of 1886.
All of these items aggregating $9541 in amount.
Before commenting on the evidence appertaining to the merits, we will consider the defendant’s plea of j>rescription of one and two years.
III.
On the trial of the plea of prescription, the judge a quo
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T.
The opinion of tho Court was delivered by
Watkins, J.
Plaintiff is the owner of 950 acres of huid situated on Honey Island, between East and West Pearl rivers, in Louisiana, on which ho resides, and of about 170 acres on tho east bank of East Pearl river, opposite the former, in the State of Mississippi. He is a farmer, and engaged in stock raising. He alleges that these lands were worth $50 per acre in 1882. That during that year, the defendant company commenced and constructed their railway through a portion of said Louisiana tract of land, that is to say, the south half of section thwtyeiyM of township seven, of range iifteen, containing 320 acres, and extending diagonally through it from the southwest to the northeast corner, on the west hank of East Pearl river — thus leaving, of the whole, three hundred and twenty acres south and west of the road, and six hundred and thirty north and east of it.
Petitioner avers that defendant company entered upon the lands without his consent and against his protest, and threw up an embankment from seven to twelve feet high, and occupied for their right of way a width of one and one-half acres of his land, for a distance of twenty-two acres, making' an aggregate of thirty-three acres in quantity, and of the value of $1650, and has since used, and now uses and occupies the same.
He further avers that the defendant’s embankment extends across Honey Island, from East to West Pearl rivers, a distance of six miles, and that it has impeded and destroyed the natural flow, and escape of the flood-waters which frequently come down Pearl river, as well as the surface waters in time of rains; that it has stopped up the. natural drains existing thereon, known as Roan’s bayou, and Bridge bayou, and thereby destroying the drainage into and through the same; that this impediment has caused his lands to overflow and their value destroyed for agricultural purposes, and as a suitable pasture for hogs and cattle, and rendering his avocation hazardous and attended with great loss of cattle, etc.
lie alleges that these lands were very fertile and produced large crops of corn, sugar cane, rice, peas, and potatoes; about one hundred and fifty acres were arable, and three hundred and fifty more were under fence; [367]*367all of said lands (other than the lands just described) were cane bottom timber lands, specially adapted for grazing cattle, and as a range for hogs; and, being more elevated than those adjacent, they afforded a “ safe refuge for cattle and hogs in time of high water, and freshets.”
The petitioner then particularizes and specifies the various different items of damage he has sustained, in consequence of the construction and maintenance of said embankment', and which aggregate $11,850, in addition to the value of the right of way, specified above.
The defendant first tendered a plea of prescription, and, it having been passed upon, it filed an answer declaring, that it had constructed an usual and customary road-bed across Honey Island, under the law, of only sufficient size and height to be above, and withstand the floods which frequently cover said land. That it crosses said land in such way as to offer the least possible resistance to overflow, or other water, and at a cost of maney thousands of dollars more than the value of the land. That the plaintiff knew of the construction of said embankment, which was many months in course of construction, and did not take any legal action to prevent it. It denies that any of plaintiff’s alleged complaints were ever made to any person duly authorized to rex>resent the company, and that “same should have been made to the president, or other legal representative of the corporation, and not to a subordinate; and if there was a difference of opinion as to the effect of the public work about to be constructed * * upon the drainage or water-flow , * he should have provoked and obtained a legal interpretation of his rights, in time %o prevent the construction of the work complained of.”
It avers that the bayous which are alleged to be closed up are not bayous or running streams, but mere gulleys, and not natural drains, in any sense of the word. That Honey Island is a very low tract of land, which has been subject to annual inundations, “ ever since the memory of man.” That people who own and graze cattle on this island, remove them, every season of overflow, to the high land east of Pearl river, as a place of safety.
That persons who plsuit crops of any kind on that laud take the chances of having them destroyed, and that such has always been the case since the island was first settled. That the overflow upon said land is equal and uniform, submerging it above and below its road, which adds nothing to its height, or to the force of the water’s current, and that it remains upon the land only for a short while at a time, passing off when the river runs down.
Defendant avers that, instead of plaintiff’s lands being worth fifty dollars per acre, same are not now, and never have been, worth [368]*368more than fifty cents per acre; and denies that there is now, or ever has been any valuable pasture on plaintiff’s land, or that the company ever promised him anything for the insignificant strip that was necessarily appropriated for a road-bed.
The case was submitted, in the court below, without argument, and the jury rendered a verdict of $7500 for the plaintiff, and found that the embankment complained of, constitutes a continuing obstruction to the natural drainage of plaintiff’s land, and that the defendant ought to be condemned to reopen such natural drainage, by the removal of said embankment, or otherwise.
The defendant made a motion for a new trial, and, when it came to be heard, the judge a quo signified that the verdict, in his opinion, was excessive, and plaintiff’s counsel entered a remittitur of the amount of the verdict in excess of $1000, for which sum the judgment was signed, and therefrom the defendant appeals.
Counsel for plaintiff contends that this was a case of a remittitur entered under judicial compulsion, which does not estop Mm from having it set aside, and recovering the full amount of the verdict. But, in consideration of the views we entertain of the merits of this controversy, it is unnecessary for us to discuss this interesting question.
II.
As a satisfactory classification of the demands of the plaintiff, as represented by the verdict of the jury, we will collate them from his counsel’s brief. They are as follows, viz:
1. Oat crop destroyed in the spring of 1886.
2. One horse and one mule drowned in 1886.
3. Value of right of way over forty-three and one-third acres of land.
4. Loss of rent of fifty acres of cleared land for the year 1886.
5. Injury to 900 acres of land by washing.
6. Pour hundred acres denuded of vegetables by the overflow of 1886.
7. Destruction and deprivation of pasturage for 1000 head of cattle, during the overflow of 1886.
All of these items aggregating $9541 in amount.
Before commenting on the evidence appertaining to the merits, we will consider the defendant’s plea of j>rescription of one and two years.
III.
On the trial of the plea of prescription, the judge a quo maintained it as to the claim for cattle lost, and deprivation of land during the years 1882, 1883, 1884 and 1885, this suit having been filed on the 15th of [369]*369February, 1887. To this part of his ruling, plaintiff’s coimsel urges no complaint in his brief. The judge further ruled that the defendant’s right must be reserved in respect to said plea against the claim for damages sustained by the loss of a horse and a mule in the early part of 1886, “until it is made to aqipear from the evidence at what date, or dates said animals were lost.”
The judge, further ruling, maintained the plea “ with respect to such damages to, and deprivation in the value of the land, as may have occurred, or resulted prior to February 16th, 1887.”
It should read 1886, as the court liad under consideration the damages alleged to have been “ sustained more than one year before the service of citation in this suit, February 16th, 1887.”
Consequently, it will be seen that the items claimed in the specifications do not, on the face of plaintiff’s petition, fall within the period mentioned, and how the same may be affected by the evidence we shall see in the progress of the discussion.
The judge’s ruling, as we understand it, does not affect plaintiff’s claim for compensatory damages for the value of defendant’s right of way. Nor do we think the two years’ prescription pleaded, applicable to this demand. Sections 698 and 1479 of the Revised Statutes, do not apply, because the defendant did not comply with their provisions and cause the plaintiff’s property to be judicially expropriated. R. C. O. 2630.
These different provisions of law are substantially the same, and are to the effect that whenever a railroad corporation “cannot agree with the owner of any land which may be wanted, for its purchase, it shall be lawful for such corporation to aq>ply by petition to the judge * * describing the lands necessary for their purposes, with a plan of the same, and a statement of the improvement thereon, if any, and the name of the owner thereof, if known and present in the State, with a prayer that, the land be adjudged to such corporation, upon the payment to the owner of all such damages as' he may sustain in consequence of the expropriation of his land as a public work. All claims for land, or damages to the owner, caused by its expropriation for the construction of any public work, shall bo barred by two years’ prescription, which shall commence to run from the date at which the land was actually occupied and used for the occupation of the works.”
Sec. 5, Act 125 of 1880, p. 169, is to the same effect.
This evidently means the occupancy by the corporation of the owner’s property under the judge’s order of adjiidication. There is a wide distinction between the occupancy of a corporation under a decree of ex[370]*370propriation, and an occupancy without the authority of the judge, or even the sanction of the owner, as is alleged in this case.
Jefferson and Lake Pontchartrain Railroad Company vs. The City of New Orleans, 31 Ann. 479, cited by the defendant’s counsel, rests upon the provision of a special statute, exceptional in character.
Act 365 or 1858.
Under the fourth section of that act a hoard of commissioners was invested with full power to drain certain districts of the City of New Orleans, and to that end it liad the right “at all times, of entering on the lands * * and of placing therein their engines and macMnory * ® and of digging all necessary canals and drains, making all necessary embankments and levees, etc.” The only right the owner had reserved him, was that of making opposition in the courts. In that case the court held that the title did not pass to the commissioners, “but only a right of servitude of drain ” was created. The compensation claimed in that case was for damages sustained by a “forcible, wrongful and illegal entry” upon plaintiff’s land. In this it is for the value of the land, the fee in which lias passed to the railroad company.
We are of the opinion that this plea is not good.
But the damages alleged to have been sustained to plaintiff's land, by washing, are governed by an entirely different rule, and to this claim the plea urged is good, and the demand was, by tlie judge a, quo, properly restricted to such- damages ¡is were sustained witlmi one year prior to suit.
Plaintiff’s theory iu reference to a continuing obstruction to the natural drainage of bis bind, and same giving rise to a continuing damage, which is, in some manner, imprescriptible,,we do not think well founded in law. We can well understand the principle, that, in case of a continuing nuisance, resulting injuriously, one recovery does not exhaust the right of action, nor preclude another, or many, subsequent recoveries, so long as it remains unabated; but we are of the opinion that it cannot be, with propriety, extended so far as to suspend prescription in case no action is instituted, at all, If plaintiff has permitted the obstruction, and consequent damage, to continue, on the very premises he has occupied, and attempted to use, during all of those years since 1882, without suit, or judicial restraint of any kind, we are decidedly of the opinion that the plea of one year’s prescription is applicable, and, though a harsh remedy, must be applied.
IV.
It is well to observe, at tlie outset of a discussion of the facts of this [371]*371case, as applicable to tlie merits, that, on account of the large number of witnesses who were examined by the parties respectively, under commission and in open court, and the great latitude allowed in their examination, the issues have been of very unsatisfactory analysis; and, on that account, we find it practically impossible to give the testimony in detail, or byway of an intelligent summary. Nor, in our view, would even a concise digest of it, subserve any useful purpose, but on the contrary, would unnecessarily encumber our opinion.
We find in evidence a report made by the Chief of Engineers to the Secretary of War, in 1879, in which 'is given an accurate idea of the topography of Honey Island, as evidenced by actual surveys. This report was made during the period of' plaintiff’s occupancy, and immediately previous to the construction of the embankment in question, by the railroad company.
This report states that the general, or mien course of Pearl river, from Jackson, Mississippi, to the Gulf of Mexico, is duo south, and that the distance between those points is about 290 miles. The head of West Pearl river is at the end of the 265th mile from Jackson, near Wakiah Bluff, at which point the valley is several miles wide, “ and it is all low cypress brakes and bayous, and.o.ld river channels, bordered with high cane and thick woods in narrow belts. The height of the flood of 1874, was here 26 feet above low water. * * At the end of the 277th mile from Jackson, old Pearl river makes an abrupt turn to the northeast, and it is at this point that Home Bayou leaves to the right. It has a mean depth of ten feet, and is full of sharp, short bends. * * A mile below its head Little Home Bayou leaves to the northward, but it is joined by several bayous from the west swamps, and where it again returns at the 280th mile, it has fully twice as much water as it had when it left. Below its entrance into Home Bayou there is an immediate increase of live feet in depth on the low shoal places, and a width of not less than 100 feet. * * At the end of the 282nd mile West Pearl river again enters with nearly all the water of the valley. * * * The left bank of Home Bayou is called Honey Island, and it retains the name down to East Pearl river entrance, near its mouth.
“Honey Island was once inhabited, and very many farms, were, for a long time, cultivated on it; but owing to the height of the floods it has been nearly abandoned.” P. 897.
This quotation is made from the sketch and field notes furnished by the assistant engineer, and embraced in the report. But in his report the chief says:
“ Perhaps no stream in the country has had its character so entirely [372]*372changed within the past fifty years than lias this. Not later than fifty years ago it was known as an excellent, navigable, clear-water stream. ’■ * The stream is now as muddy as the Mississippi river; its length has been shortened fully one-tenth by cut-offs, and its banks, in nearly every bend, are annually caving in, with their load of trees to form obstructions to navigation. Ms natural sequences planters liaive been driven, by floods, from the bottom lands, which they denuded of their protecting- forests and- undergrowth, and the commercial business of tlie valley has been entirely destroyed.” P. 899. '
There are several witnesses — some for the plaintiff and some for the defendant — who confirm this statement from the engineer’s report. They assert, from actual personal- knowledge, that Honey Island has, for a groat many years, been subject to extensive overflows, at intervals of several years, and to lesser ones every year, and ranging- in depth, from one to ten feet. That there are but few people living on the island, and it is regarded as a free pasture for cattle and range for stock. That milch cows frequently swim Pearl river twice a day going to, and returning- from the island. That when the water floods the banks of Pearl river “ it covers everything,” That the owners of cattle drive, or swim them out during times of high water, as they could not live on the island. That the people who reside on the island are those of small means and who cultivate very small patches of a few acres each.
The plaintiff’s lands' are rather more elevated than others on the island, and some of them produce cereals very abundantly. There is some evidence to the effect that the rental value of some of his lands have been diminished considerably since the construction of the embankment, but they do not attribute same'wholly to that cause; while others deny it. It is shown that the lands situated on East Pearl river, at that point, are six or eight feet higher than those on West Pearl river —eight or ten miles distant — and that the natural inclination of the ground is in that direction.
As it is a conceded fact that defendant’s road-bed and embankment extend diagonally through plaintiff’s land from southwest to northeast— and plaintiff’s land is, at the point of its intersection, only three-fourths of one mile in width, and situated on the west bank of East 1’earl river where the lands are of the greatest altitude — it stands to reason and philosophy that the embankment, while it operates as a temporary restraint to the overflow and surface water descending, would at the same time, serve to increase their flow towards West Pearl river, and soon relieve the land; while, to the lands below, it would be an additional protection against both.
[373]*373Taking tlie testimony, all in all, we are of the opinion that five hundred dollars would be a liberal allowance to the plaintiff for all ike damages he has suffered from the causes assigned.
Y.
The defendant’s witnesses state that the railroad company’s road-bed and right of way occupy about forty acres of plaintiff’s land — which is more than is demanded in plaintiff’s petition — and may be accepted as about the correct allowance to be made in quantity; but, from all the testimony, we think plaintiff’s estimate of fifty dollars per acre — situated as these lands are, andas they are undoubtedly circumstanced — is an extravagant extimate. It is submitted that five dollars per acre is a fair and adequate compensation for them, or two hundred dollars for the whole.
YI.
There remains but one other question for solution, and that is the claim in the verdict and judgment which condemns the defendant to “ reopen such natural drainage by the removal of said embankment, or otherwise.”
It would certainly be unjust to the railroad company to compel it to remove the superstructure and demolish its embankment throughout the entire distance from East to West Pearl river and erect, in its stead, an expensive trestle, merely for the relief of plaintiff’s six hundred and eighty acres of land, situated above. Surely the defendant’s act, in openly entering upon the defendant’s land, with plaintiff’s knowledge, and in full view of his domicile, and constructing thereon a most important link in their transcontinental railway, could not subject it to such consequences. But this is not an open qrrestion, however, as it has been by us twice considered and decided adversely to plaintiff’s contention, and in cases cited in plaintiff’s brief.
In Bourdier & Bellesein vs. Railroad Company, 35 Ann. 949, it was said:
“ If the entry was unlawful, the plaintiffs condoned it. They should, at once, and peremptorily have forbidden the entry of the defendant, if they intended to dispute its right to the road-bed, etc. * * They should have denied defendant access, and ha-veprevented it by using legal process.”
• In St. Julien vs. Morgan’s Railroad Company, same volume, at page 925, this court again said, in even more conciso and unequivocal terms, upon the same subject:
“ It is unnecessary for us to say or to intimate how, or whether [374]*374ho, would have been protected had he done more than talk io a lawyer. Certain it is lie did not invoice the arm of the law, at a time when it would have been of service to him, bnt, on the contrary, acquiesced in tbe defendant’s taking possession and using Iris property, encouraged it to irrosecute its work by abstaining from any attempt to prevent it, and made no complaint in a court of law, of tbe injuries inflicted upon him, until tlio defendant had expended large sums of money in completing it. Having thus permitted the use and occupancy of his land, and the construction of a quasi public work thereon, without resistance, or even complaint, he cannot afterwards require its demolition, or prevent its nse, etc.”
(The italics áre ours.)
It is submitted that the jriaintiff lias acquiesced in tlie construction of the embankment on his land by the defendant company. It was erected in 1882, and this suit was not filed until 1887.
He certainly did not attempt, by a due and timely resort to judicial proceedings, to prevent its construction. As we understand it, plaintiff’s complaint is that the defendant constructed an embankment and not a trestle, and that it lias failed to make compensation for tbe injury bis property has thereby received — there having been a disagreement between himself and the officers of the corporation, as to tlie amount due.
Our predecessors maintained this principle in Jefferson and Lake Pontchartrain Railroad Company vs. City of New Orleans, 31 Ann. 481, cited supra, and in which is quoted an extract from Goodwin vs. Cincinnati, 18 Ohio 169, and from which we select the following paragraph, viz :
“ Where á party stands by * * and silently sees a public railroad constructed upon bis land, it is too late for him, after the road is completed * * to seek by injunction, or otherwise, to deny the railroad company the right to use the property. Considerations of public policy, as well as recognized principles of justice between parties; require that wo should hold, in such cases, that the property of the owner cannot de reclaimed, and there only remains to him a right of compensation. An injunction * * might home been sought at the first known attempt or even threat to despoil tlie land, or to construct tlie railway upon its line. 'The omission to do so is cm implied assent. The work being completed, the public, as well as those directly interested in tiie road * * have a right to insist on the application of this rule.” Vide Tilton vs. Railroad Campany, 35 Ann. 1002; Lawrence vs. Morgan’s L. and T. R. R. and S. Co., 39 Ann. 427.
[375]*375VII.
We think the defendant did not violate the terms of its charter requiring it to “maintain its railroad over and across waters of the State of Louisiana known as Lake Pontokartrain and other streams anti bayoits between Lewisbnrg and Pearl river by britltjes.”
The proof does not show, to our satisfaction, that the depressions existing in 1882, in and through some portions of plaintiff’s lands, were, in the sense of that provision of defendant’s charter, either bayous, waters, or water-courses. Evidently they were such as had been made, from time to time during years previous, by the attrition of overflow water from East Pearl river and surface-water produced by the fall of rain.
These are inherent to any soil which is left in a state of nature, and unprotected by levees or embankments. ■ We do not regard them as of the character of streams which the railroad company was obliged to bridge, or span with culverts.
Entertaining these views, the judgment appealed from is excessive to the extent of three hundred dollars •, and that part of the decree which requires the demolition of the embankment complained of, is reversed, and set aside.
It is, therefore, ordered and decreed that tho judgment appealed from be amended in the following particulars, viz:
1. So as to reduce the amount thereof from one thousand to seven hundred.
2. So as to relieve the defendant company from demolishing, or altering its embankment and road-bed.
And that, as thus amended, same be affirmed with the cost of appeal taxed against plaintiff and appellee.