erty of an abutting owner is taken, and which to him consequential in its nature, for which he imposes no additional burden on his soil, is as cannot recover. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 271, 272; Dec. Dig. § 102.*] Williams, J., dissenting. (Syllabus by the Court.) tainer, and forcible and unlawful detainers, [ across a public alley, where no part of the propwhere the defendant disputes the plaintiff's right of possession, it shall be lawful for such defendant to introduce before the jury trying the main issue in such action evidence showing the damage he may have sustained in being dispossessed of the lands and premises mentioned in the writ and declaration in the cause, and the jury, if they find the issue for the defendant, shall at the same time find what damage the defendant has sustained by being dispossessed under the provisions of this act, and the court shall render judgment restoring the property to the defendant, as now prescribed by law, and shall also render judgment against the plaintiff and his security in the bond for damages as found by the jury, as well as the cost of suit." Construing this section, Mr. Justice Eakin in Collins v. Karatopsky, 36 Ark. 316, says: "If, however, the verdict in such case should be for defendant, it is made the duty of the jury, at the same time, to assess the damages sustained by him in having been dispossessed, and judgment therefor is to be given against the plain tiff and his sureties." It is futher contended that the court below erred in not holding that there was an agreement between plaintiff and Allen that, in consideration of such voluntary return of possession by plaintiff to the defendants, no claim of any kind would be made against rlaintiff in this action for the rents and profits of the farm in controversy. This was a question of fact the burden of establishing which was upon the plaintiff in error, plaintiff below. He testified that this was the agreement, and the defendant positively denied it. The court below held, presumably, that plaintiff had not established this proposition by a preponderance of the evidence. We see no reason for disturbing his finding or in making an exception in this case to the well-established rule that, where there is any evidence reasonably tending to sustain the findings of the court below on a question of fact, this court will not disturb such findings. The judgment of the court below is affirmed. All the Justices concur. (23 Okl. 735) Error from District Court, Logan County; John H. Burford, Judge. Action by Charles E. Castanien and others against the Choctaw, Oklahoma & Western Railroad Company. Judgment for plaintiffs, from which both parties brought error to the Supreme Court of the territory of Ok lahoma, whence the cause is transferred to Reversed, with directions. the Supreme Court of the state of Oklahoma. On March 25, 1903, Charles E. Castanien, C. A. Castanien, and Frank A. Castanien, defendants in error, plaintiffs below, sued the Choctaw, Oklahoma & Western Railroad Company, plaintiff in error, defendant below, in the district court of Logan county, and in their petition, in substance, alleged defendant to be a corporation, organized and existing under the laws of the territory of Oklahoma. That on January 1, 1903, prior to, and continuously since, they were the owners in fee of lots 5 and 6 in block 64, in the east division of the city of Guthrie. That during that time they were in possession of said lots, had improved the same by erecting buildings thereon; and that said land was valuable. That defendant, in the construction of its railroad up Vine street northward into said city, as authorized by its charter so to do, caused an excavation to be made along the entire east line of said lots and about 14 feet deep, and had removed the earth and natural support from the same, so that the building thereon cannot be used, and that it is impossible for them to improve said lots by erecting any heavy buildings thereon. That Vilas avenue runs east and west in front of said building. That the same was a public street laid out for the travel and convenience of the public and was known by that name on the plat of said city, whereby access could be had to said building from the east. That the same was a traveled street for its en CHOCTAW, O. & W. R. CO. v. CASTANIEN tire length, which fact added greatly to the et al. (Supreme Court of Oklahoma. May 12, 1909.) 1. TRIAL ($ 359*) - SPECIAL VERDICT INCONSISTENT WITH GENERAL VERDICT. It is reversible error to overrule a motion for judgment non obstante where the special findings show a state of facts inconsistent with the general verdict. value of said property. That by the construction of said railroad of defendant, and by means of the deep excavation of said street at its intersection with the east line of said property, said street had been entirely closed to traffic and its value greatly diminished. That behind said lots there extended east [Ed. Note. For other cases, see Trial, Cent. and west an alley by which access could Dig. 88 857-860; Dec. Dig. § 359.*] be obtained to the rear, which added greatly 2. EMINENT DOMAIN ($_102*) to the value of said lots. That by reason of CONSTRUCTION AND MAINTENANCE-CONSE- the construction of said railroad and excavaQUENTIAL INJURY. Incidental inconvenience and injury result- tion aforesaid said alley had been destroyed ing from an excavation made by a railroad and obstructed and no longer afforded access RAILROADS to said property-all of which had diminish- | may give judgment accordingly. St. Okl. ed the value of said property $5,000, for which they prayed judgment. 1893, §§ 4175, 4176, 4177. Where the special findings show a state of facts inconsistent with the general verdict, such finding of fact must control. Severy Ad. v. C., R. I. & P. Co., 6 Okl. 153, 50 Pac. 162. It is reversible error to overrule a motion for judgment on the special findings when such is the case. 20 Enc. of Pl. & Pr. 355, citing Gripton v. Thompson, 32 Kan. 367, 4 Pac. 698; Atchison, etc., R. R. Co., v. Plunkett, 25 Kan. 188; Tobei v. Brown, 20 Kan. 14. The facts disclosed by the special findings are: That the lots in controversy are about 50 feet wide and front on Vilas avenue, which is open to Division street on the west, but was closed by a fence built by the railway company 5 feet east of their east line on the edge west of a 14-foot excavation made by said company, which extended 5 feet from and along the east line of said lots and intersected and cut off the alley running along their south line in the rear, which, before that, was open and in general use by the public, to the intersection of Vine street, which was the next street running north and south; that the railway company has taken no part of said lots; that since making the excavation said railway company had dedicated to the public a strip of ground sufficient to afford ingress and egress to and from the alley to the east; that the jury allowed no damages by reason of the closing of Vine street at the point of its intersection with Vilas avenue; On December 3, 1903, defendant filed answer, in effect justifying their action under an ordinance No. 517, passed and approved on January 23, 1902, by the city council of the city of Guthrie and duly accepted in writing by the Choctaw, Oklahoma & Gulf Railroad Company, a corporation organized and existing under the laws of the territory of Oklahoma, of which defendant is successor, granting to said Choctaw, Oklahoma & Gulf Railroad Company, its successors and assigns, the right to use and occupy certain avenues, streets, and alleys of said city and vacating same for that purpose, a copy of which was filed with the answer. It also justified under ordinance 538 of said city, granting to defendant, its successors and assigns the right to use and occupy certain streets and alleys of said city, vacating the same for that purpose, and filed a copy thereof, marked "Exhibit B." That by the terms and conditions of said ordinances defendant was granted the right, among others, to use and occupy the west half of Vine street in East Guthrie and that part of Vilas avenue lying north of lots 1, 2, 3, and 4, block 64, aforesaid, and the alley in said block the obstruction of which is complained of, and averred that it had done nothing in the occupation of said street and alley except what it was authorized to do under said ordinances. On March 9, 1905, after supplemental anthat access to the front of said lots is free swer and reply thereto, the cause was tried and unobstructed, except that a wagon can to a jury, and special interrogatories sub-reach the front at the east side only by backmitted by defendant were returned by it, together with a general verdict for plaintiff and against defendant for $500, and, after motion for judgment non obstante veredicto was by defendant filed and overruled, both parties filed motions for a new trial, which were also overruled, whereupon the court, on February 21, 1906, rendered judgment on the general verdict in favor of plaintiffs and against defendant in the sum of $500, for which said judgment both parties appealed and prosecuted the same by separate petitions in error and cases-made to the Supreme Court of the territory of Oklahoma, and the same is now before us for review as succes sors to the court, both of which will be determined by this opinion. M. A. Low, Blake & Blake and Low, Dale & Bierer, for plaintiff in error. L. O. Lytle and Devereux & Hildreth, for defendants in error. TURNER, J. (after stating the facts as above). The chief contention made by plaintiff in error the railroad company is that the court erred in overruling its motion for judgment non obstante, claiming the special findings to be inconsistent with the general verdict, and invoking the statutes to the effect that where such is the case the trial court ing up and can be driven within about 12 feet of the northeast corner without backing; that the entire depreciation of the value of plaintiff's property is $500, $350 of which was caused by closing the alley and $150 by interfering with ingress and egress to and from Vilas avenue. The claim for damages to lateral support was abandoned. The only building on the lots consisted of a livery stable with two entrances fronting on Vilas avenue extending back to the alley. It was conceded that the title to the property was in plaintiffs, and that the railway company, in doing the acts complained of, was acting pursuant to valid ordinances of the city, introduced in evidence. Since the railroad company concedes a liability of $150 for injury done to the front of plaintiff's property, the only question necessary for us to determine is: Do the acts complained of justify the finding and judgment for $350 for depreciation in the value of plaintiff's property caused by the closing of the alley? We think not, for the reason that the damage sought to be recovered is for a consequential injury. This we think is well settled in Scrutchfield v. Choctaw, etc., Ry. Co., 18 Okl. 308, 88 Pac. 1048, 9 L. R. A. (N. S.) 496. The injury there complained Paul, on which are situated two houses, one of, which is occupied by himself and the other by his tenants; that these houses are so situated that, previous to the acts complained of, plaintiff's best, most convenient, and usual means of access to and egress from his said houses was by way of Duke street on the west, and Grace street on the south, by and through which he was accustomed to reach Fort street, and his place of business in St. Paul; that this means of access and egress was short and convenient and greatly used by him; that the defendant has built and is operating a railroad immediately adjoining said real estate of plaintiff, and within three feet of his south line; that in building said road defendant excavated to the depth of seven feet across Duke street and in and upon Grace street, whereby defendant obstructed and interfered with and prevented the use and enjoyment of said streets by plaintiff, and he had been acustomed and was entitled to use and enjoy the same, and cut off and prevented his use of this means of access to and egress from his property, and compelled him to seek and use a much less convenient and accessible route, greatly to his loss and damage. It will be observed that there is no allegation that any of plaintiff's property has been taken, or that the corpus of it has been in any way physically touched or disturbed. Neither is it alleged that the act of defendant in making this excavation on these streets is unlawful, nor that the part of the street upon which it is done abuts plaintiff's premises; in fact, it is conceded that it is not. Nor is it alleged that the excavation has been improperly or negligently done. There is no claim that this excavation cuts off plaintiff from all means of access and egress to and from his premises-simply that it cuts him off from the most convenient means, and compels him to resort to others which are less convenient. The injuries therefore which he suffers are not special to himself, but such as are sustained in common with the public, possibly greater in degree, but the same in kind”—and affirmed the judgment of the lower court sustaining a demurrer to the complaint. In re Melon Street, 1 Pa. Super. Ct. 63; Bradley v. N. Y. & N. H. Ry. Co., 21 Conn. 293; Buhl v. Front St. Co., 98 Mich. 569, 57 N. W. 829, 23 L. R. A. 392. of grew out of the construction of this same son, Brown and Ramsey's addition to St. road up Vine street in the city of Guthrie. In that case the testimony disclosed that this street crossed at right angles Harrison avenue, upon which plaintiff owned a business lot about 150 feet west of the railroad. It also crossed at right angles Vilas avenue, upon which plaintiff owned a dwelling house about 75 feet east of the railroad. It also crossed at right angles Springer avenue, upon which the plaintiff owned two lots about 40 feet east of the railroad. All of the streets of the city were open to plaintiff's property, except one-half of Vine street, which was occupied by the defendant company. The question determined in that case was substantially the same as that to be determined in this, which was stated by the court as follows: "From the foregoing statement of facts, it is manifest that the question presented in this case is whether or not the owner of real property can maintain an action for damages thereto, by reason of the lawful construction of a railroad where no parts of the premises are taken by the railroad right of way, and where the only damage complained of is such as arises by reason of the construction of the railroad across a street which runs in front of plaintiff's property, and which street is obstructed by the construction of the railroad, at the point where said street is crossed." After reviewing the facts the court said: "From this it will appear that no part of the plaintiff's property has been taken, and that damage sought to be recovered is for a consequential injury which affects all persons in the vicinity alike, except possibly in the degree of injury believed to have been sustained, because of the construction of a line of railroad along a public street of the city" and affirmed the judgment of the lower court sustaining a demurrer to plaintiff's petition. There is no difference in principal in that case and the case at bar. In that case the damage sued for was alleged to have accrued to plaintiff's property from the construction of the railroad across a street which ran in front of plaintiff's property some distance away. In the case at bar the damage sued for is alleged to have accrued to plaintiff's property from the construction of a railroad across an alley, which runs behind plaintiff's property a few feet away. Following the holding of the court in that case we are constrained to hold in this case that the injury was consequential, for which no recovery can be had. It is unnecessary to multiply authority on this point, but we quote from one and cite others. In Rochette v. Chicago, Milwaukee & St. Paul Railroad Company, 32 Minn. 201, 20 N. W. 140, the court said: "The question in this case is whether the complaint stated a cause of action. The facts alleged are: That plaintiff is the owner of lots 49, 50, and Paraphrasing a portion of the opinion in Scrutchfield v. Choctaw, etc., Ry. Co., supra, we concluded that authorities might be multiplied almost without limit that where, as in this case, no part of plaintiff's property has been taken, the alley upon which it abuts is not interfered with, and his only grievance consists in not having free and unobstructed access to said property in one direction, all other alleys of the city being open and unobstructed, he suffers no other or dif such as is common to the general public, and which appeared from the face of the note he cannot recover. and were pleaded by plaintiff in his comThere is no conflict between this case and plaint. Judgment on default was rendered Foster Lumber Company v. Ark. Valley & in favor of plaintiff in the commissioner's Western Ry. Co. (Okl.) 95 Pac. 224. There court, from which defendant appealed to the court held that an abutting owner whose what was then the United States Court for means of access to his property had been the Southern District of the Indian Terrimaterialy interrupted by the building of a tory at Chickasha. While the cause was railroad in front of his property, the same there pending and untried, statehood interbeing an invasion of an easement, might re-vened, and by virtue of the terms of the cover. In the case at bar no such question is involved. We are therefore of the opinion that the special findings show a state of facts inconsistent with the general verdict, in that they do not justify a judgment for $350 for depreciation in value of plaintiff's property, caused by the closing of the alley, and for that reason the cause is reversed, with directions to enter judgment in favor of plaintiff and against defendant for $150, for injury done to the front of plaintiff's property and for costs. All the Justices concur, except WILLIAMS, J., who dissents. (23 Okl. 874) HUMPHREYS v. DAVIDSON. Where an action was brought in an United States commissioner's court and appeal taken prior to statehood, it is not error for the district court of the county in which such appeal is pending to refuse defendant leave to file a set-off not filed in the commissioner's court, or one having been filed without leave after such appeal to strike it out. [Ed. Note. For other cases, see Courts, Dec. Dig. § 431.*] (Syllabus by the Court.) Error from District Court, Grady County; Frank M. Bailey, Judge. De Action by A. Davidson against Horace Humphreys. Judgment for plaintiff. fendant brings error. Affirmed. Bond & Melton, for plaintiff in error. D. Welborne, for defendant in error. enabling act and the Schedule to the Constitution the district court of Grady county took jurisdiction of the cause. The defendant filed an answer in that court, in which he admitted the execution and delivery of the note, and admitted plaintiff was the owner and holder thereof, and the amount due thereon was in accordance with the prayer of plaintiff's complaint. No denial of any of the allegations of plaintiff's complaint were contained in the answer, but a second paragraph thereof pleaded a set-off, amounting to $125, which defendant alleged plaintiff owed him by virtue of having indorsed a certain check which went to protest. Upon the cause coming on for hearing, the plaintiff filed a motion to strike from the files that part of the answer of defendant wherein the said set-off was pleaded, showing for grounds that the same was not filed or pleaded in the United States commissioner's court, where the cause was originally tried, and for the further reason that no leave of the court was obtained to file the same, and praying judgment for the amount of the note sued on in accordance with the prayer of the complaint. This motion was by the court, sustained and judgment rendered, and it is this action on the part of the court upon which the defendant predicates his allegations of error in this court. In our opinion the court did not commit error in so ruling. Section 2730 of the Statutes of Indian Territory, applicable at the time of the trial of the cause in the commissioner's court, provides that the pleadings may be written or R. oral, and that all cross-demands or set-offs shall be made, if at all, at the time the answer is put in. And section 2731 provides that any written instrument upon which a set-off is founded shall be filed with the claim founded thereon or a sufficient reason given for not doing so. To our minds the foregoing sections of the statute make it clear that, if defendant desired to set off as against the claim of plaintiff any claim which he had against him, it is essential that this be done in the first instance. We can gather no other meaning, inference, or purpose in the provisions of the foregoing statutes if this is not true. Our conclusion on this matter is strengthened when we consider the fact that section 2831 of the same statutes provides that "the same cause of action, and no other, that was tried before the justice shall be tried in the circuit court DUNN, J. This case presents for our consideration an appeal from a judgment of the district court of Grady county. On July 10, 1907, the defendant in error, who was plaintiff below, filed an action in the court of the United States commissioner at Chickasha, located in what was then Indian Territory, against the plaintiff in error, on a certain promissory note which it is alleged had been executed and delivered by the defendant and which plaintiff had bought for a valuable consideration, and of which he was then the owner and holder. The note was a Texas contract, and provided for interest at the rate of 10 per cent. per annum from maturity, and an attorney's fee if placed in the hands of an attorney for collection, all of For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes and required him to, no error would be committed in the denial of permission to speak when the same depended upon the exercise of the indulgence of discretion on the part of the court. The status of the action and of the parties were fixed as to this set-off by the defendant in the commissioner's court, and we are not able to conclude that the changing of this status over the protest of plaintiff in the district court would be in furtherance of justice. upon the appeal." We believe it to be clear | claim and have allowed the rule that, since that the cause of action contained in this set-defendant spoke not when the law permitted off, not being one which was tried before the commissioner, could not under the terms of this language be one that could be tried up on appeal. If this language stood alone, to our minds it would be conclusive of this subject; but, when we find that it is followed immediately by the following language, it appears to us that the question is removed from reasonable grounds of contention: "And no set-off shall be pleaded that was not pleaded before the justice." As this setoff it is conceded was not pleaded before the justice or the United States commissioner in this case, it is our conclusion that it was not a proper subject for the consideration of the court on appeal. In this conclusion we are supported by several decisions of the Supreme Court of Arkansas, from whence these statutes sprung: Amis v. Cooper, 25 Ark. 14; Texas & St. L. Ry. v. Hall, 44 Ark. 375; St. Louis, I. M. & S. Ry. Co. v. Richter, 48 Ark. 349, 3 S. W. 56. Counsel for defendant, however, argue that the right of defendant to plead such setoff was governed by the statutes in force at the time the appeal was filed, and that, by virtue of statehood and the extension, under the terms of the enabling act and the Schedule to the Constitution, of the laws of Oklahoma over that portion of the state formerly Indian Territory which included the court where this cause was then pending, defendant's rights should be weighed under the terms of the statutes so extended, and not under those of Arkansas. Conceding this to The judgment of the lower court is accordingly affirmed. KANE, C. J., and TURNER and WIL LIAMS, JJ., concur. HAYES, J., disqualified and not sitting. (23 Okl. 256) ST. LOUIS & S. F. R. CO. v. RICHARDS. (Supreme Court of Oklahoma. Feb. 23, 1909. On Rehearing, June 1, 1909.) 1. RELEASE (§ 24*)-RIGHT TO CONTEST INVALIDITY-RESTORATION OF CONSIDERATION. Where personal injuries have been suffered, for which a liability exists, and a release therefor has been fraudulently procured for grossly inadequate sum, an action for damage may be maintained without first obtaining a decree to rescind or to cancel the release: and the lease so obtained, when it is set up as a defense, plaintiff is not precluded from attacking a rebecause he has not restored or tendered back the amount received by him at the time the release was obtained. [Ed. Note.-For other cases, see Release, Cent. Dig. §§ 41, 44, 45; Dec. Dig. § 24.*] 2. ACTION (8_11*)-CONDITIONS PRECEDENTOFFER OF PERFORMANCE. When, in an action at law, the tender of performance of an act is necessary to the establishment of any right against another party, such tender or offer to perform is waived or be that the offer will be refused. comes unnecessary when it is reasonably certain [Ed. Note.-For other cases, see Action, Dec. Dig. § 11.*] 3. RELEASE (§ 17*) - PERSONAL INJURIES be well founded, we find that section 119, art. 10, c. 67 (section 5046) Wilson's Rev. & Ann. St. Okl. 1903, pertaining to the trial of all causes in the district court on appeal from judgments rendered before a justice of the peace, provides that "the cause shall be tried de novo in the district court upon the original papers on which the cause was tried before the justice unless the appellate court, in furtherance of justice, allow amended pleadings to be made, or new pleadings to be filed." The answer in this case appears to Plaintiff was injured while traveling on have been filed without this allowance by following day, while she was in bed at the railone of defendant's passenger trains. On the the court, and its action in striking the set- way company's hospital, away from friends or off pleaded from the answer was action tan- acquaintances, and still suffering from the eftamount to a denial of its being filed. We fects of injuries sustained, the extent of which she did not know and apparently not in a posiare not able to say that such action on its tion to ascertain, she was visited by a claim part was error and abuse of its discretion agent and physician in the employ of the dewhen we consider the fact that under the fendant. The agent desired to effect a settleArkansas practice which existed at the trial ment and release of the damages and liability, and, in order to induce defendant to sign such of this cause in the commissioner's court a release for a grossly inadequate sum, he and the failure to timely file a set-off was virtually physician represented to her that her injuries a waiver; also, when we further consider were slight and temporary, when in fact they that, under those statutes, defendant, claim-sician knew, or should have known had he exer were serious and dangerous, which fact the phying a set-off, was given the right to file it cised the proper care. Defendant believed the in the commissioner's court, and denied the representations, and acted thereon by signing right to file it on appeal from its judgment. the release, which she would not have done had she been advised of her true condition. Held, This waiver on the part of defendant to our that such facts sustained the averments of minds established in plaintiff a right to plaintiff's reply, which alleged that the release |