Mayne

— This action was instituted for the purpose of condemning a right of way for a railroad through *567 the lands of John Mayne, the defendant and appellant.

The cause was tried with the intervention of a jury, to whom were referred special issues of fact for determination.

Upon the verdict of the jury on the special issues, adopted by the court, judgment was entered, and a final order of condemnation made by the trial court.

The amount of money awarded by the jury as compensation for the land taken, and also that awarded for damages to the land not taken, was paid into court by the plaintiff, and accepted by the defendant upon the following terms: “And I hereby abandon all defense to this action, except as to the amount of damages that I may be entitled to in the event that a new trial shall be granted herein,” signed by the defendant and his attorneys of record. This last proceeding is in accordance with the provisions of section 1254 of the Code of Civil Procedure.

A motion for a new trial -was made and denied; from the order made in the premises, and the judgment, the defendant appeals. He claims that the court erred in deciding that the defendant was not entitled to prove…