Stratton v. Omaha & R. V. R. Co. road Company) for right of way or other railroad purposes in case the line of the road has heretofore, or shall be, laid over the premises." On the 24th day of October, 1876, the said George A. Stocking, his wife Emma C. joining him, conveyed the right of way in dispute to the defendant in this action by a right of way deed, which was filed for record October 25, 1876. Defendant soon afterward built its line of railroad upon said right of way, and has ever since continued to use and occupy the same for railroad purposes. On January 19, 1878, Stocking assigned all his interest in said executory contract to one Perky, by whom a like assignment thereof was made to one Knapp. Afterward, on June 20, 1878, Knapp assigned in like manner an undivided half interest in said contract to plaintiff, which on March 29, 1879, was followed by an assignment, between the same parties, of the other undivided half. Each holder of said executory contract retained possession of the tract therein described, except that defendant retained and used the strip referred to for right of way purposes until September 26, 1883, and even then and thenceforward defendant's possession has continued as before. On the date last mentioned, the Union Pacific Railroad Company executed to plaintiff a conveyance of the north half of the southeast quarter of the section above described, pursuant to the terms of two contracts therein described, one of which is that above referred to; the said conveyance reciting that it is "in pursuance and fulfillment of which said contracts this conveyance is made and executed." This conveyance contained the following language following the description of the subject-matter thereof: "Reserving, however, to the said Union Pacific Railway Company all that portion of the land hereby conveyed (if any such there be) which lies within lines drawn parallel with and one hundred feet on each side distant from the center line of its road as now constructed, and any greater width when necessary permanently to include all its cuts, Stratton v. Omaha & R. V. R. Co. embankments, and ditches, and other works necessary to secure and protect its main line." Plaintiff claims that he ought to recover from the defendant the right of way strip conveyed by Stocking and wife, notwithstanding such conveyance and the above quoted language, for the alleged reason that the deed of Stocking was but a quitclaim deed of a strip of which the Union Pacific Railway Company at the time held the legal title; that by such quitclaim deed the grantee was only vested with such interest in the property as was at the time held by the grantor, which was less than the legal title, which never passed until vested in plaintiff; and that plaintiff by virtue of said legal title should have had a judgment of ouster against defendant in this ejectment suit. This claim has sufficient plausibility to deserve consideration. At the time Stocking made a conveyance of the right of way to the defendant, the Union Pacific Railway Company was holding the legal title to the forty-acre tract as trustee for the use of Stocking, and compellable to convey to him upon his making payments as agreed. Each assignee under Stocking took only the interest which his immediate assignor had in said tract; meantime the defendant was holding continuous possession under and by virtue of its deed from Stocking. There can be no question that the original entry of the defendant upon the right of way was lawful, and so continued, at least while Stocking held the contract in question. We are at a loss to conjecture just when it is assumed that such possession became wrongful. It seems, however, to be contended by the plaintiff, that at the date of the deed of the Union Pacific Railway Company to plaintiff, such possession, as against plaintiff, became illegal. In this view we cannot concur. It might be that the covenants in the deed of the Union Pacific Railway Company were already broken when made, but that does not affect the merits as between the parties to this controversy. If, upon due legal proceedings, it shall be established that there has Shults v. State. been a breach of the Union Pacific Railroad Company's warranties to plaintiff, such breach might be satisfied in damages in a proper action between those parties as covenantor and covenantee. The plaintiff in this action, however, who has taken the legal title with full knowledge of the possession held by the defendant for almost ten years under a deed from Stocking, through whom plaintiff claims by mere assignment of his interest, is not in a position to maintain ejectment against the defendant. There are between the parties equities which cannot properly be ignored, as must be done if plaintiff is adjudged entitled to maintain this action. The following language of COBB, J., in Omaha & N. N. R. Co. v. Redick, 16 Neb., 313, applies to the facts under consideration; "Whatever the rights the plaintiff may have against the present plaintiff in error, growing out of this right of way question, and whether he is estopped in pais to assert any or all of them, it seems clear to me that he is not entitled to a judgment that would enable him to sever a line of commerce which by his assent, if not through his actual agency in part, was constructed over this same property, and has enjoyed free passage over it for at least seven years." The judgment of the district court is THE other commissioners concur. AFFIRMED. CUYLER SHULTS V. STATE OF NEBRASKA. FILED JUNE 30, 1893. No. 5527. 1. Homicide: INSANITY AS DEFENSE: NON-EXPERT WITNESSES. Only such intimate acquaintances of a person accused of crime as have seen him almost daily for several months preceding the date upon which the alleged crime occurred, are competent as 37 481 46 501 37 481 48 160 48 195 37 481 56 137 Shults v. State. 2. 3. non-expert witnesses to testify as to the sanity or insanity of the accused. : Such testimony, however, must be strictly limited to such sanity or insanity, and confined to those occasions upon which the witness testifies to having observed the conduct and appearances of the individual whose sanity is the subject of inquiry. : : The rule permitting a non-expert witness to testify as to the sanity or insanity of a party whose legal accountability is the sole matter in issue does not allow such witness to testify that at a certain date such party knew the difference between the right and wrong of an act at that time committed by him. ERROR to the district court for Hall county. Tried below before HARRISON, J. W. A. Prince and W. H. Thompson, for plaintiff in error. George H. Hastings, Attorney General, and Charles G. Ryan, for the state. RYAN, C. Cuyler Shults was convicted in the district court of Hall county, Nebraska, of the murder of J. P. Farr, charged to have been committed in said county on the 28th day of August, 1891. There was no question that said Farr came to his death at the time and place charged from the effect of a gunshot wound inflicted upon him by said Shults. The defense was insanity, of which there was much evidence. It was shown that the accused was wounded in the right side of the head by a fragment of a shell on the 6th of April, 1862, at the battle of Shiloh; that since his discharge from the federal army the accused has become gradually morose, at times almost savage towards the members of his family; that he has become year by year quarrelsome at times and distrustful of his family and friends; that he frequently was cruel towards his cattle and horses; that Shults v. State. when crossed by either man or beast he became much irritated, and on such occasions threatened to take the life of the animal or man by whom his displeasure was excited; that he sought solitude and talked much to himself; that a medical examination showed that his left side was partially paralyzed; that his sleep was fitful; that owing to a continuous pain in the region of the above mentioned wound the accused habitually slept with his hands locked across his head; that he seized frequently the bed clothes in his teeth and bit and tried to tear them, at the same time gritting his teeth, and on one or two occasions it was testified that he foamed at the mouth. There was evidence that the night before the commission of the homicide the accused was agitated beyond reason by an act of Farr, which accused considered as an outrage toward himself and his family; that in speaking of it he shed tears on that day, and on the same day as, and just previous to, the killing of Farr, saying at each time mentioned that he had to kill Farr. Other evidence in the same direction was given and there was also evidence of epilepsy of accused's mother. The wife of the accused testified that accused said that by the use of intoxicating liquors the pain which continuously existed in his head was deadened; and she further testified as of her own observation that such use enabled him to sleep when otherwise he could not. There was medical expert testimony that periodic insanity of a sub-acute character was indicated by the symptoms of the prisoner. The state insisted that the above conduct of the accused was owing to a violent temper, often aggravated by intoxication, but that no insanity existed. As the sole contention in this case was as to the sanity and ability of the accused to discriminate between right and wrong on the 28th day of August, 1891, we shall limit our observations to that and incidental inquiries, giving the testimony of the witnesses on rebuttal at considerable length. (To a proper understanding of this evidence |