#### Lucas v. Jones et al.

1. Practice in the Supreme-Court: evidence: trial. When the abstract fails .to show what evidence was admitted and what excluded, the court will not determine whether or not the 'appellant was prejudiced by the admission or exclusion of evidence.

2. -: abstract. Where the appellee denied that an instruction objected to by appellant was given on the trial, and his statement was notcontroverted by the appellant, held-that it should be taken as confessed.

*Appeal from Des Homes Circuit Court.*

Thursday, October 5.

W. B. Jones et al., defendants and appellants, filed their petition before the boai’d of supervisors of Des Moines county, praying for the establishment of a public highway in Bui-lington township, in said county, which said proposed highway ran through the plaintiff’s land. The plaintiff filed a claim for damages, which claim was disallowed, and the plaintiff appealed to the Circuit Court in said county, where there was *299a trial by jury. Other facts will appear in the opinion. Verdict for the plaintiff for $71.25. Defendants appeal.

*T. J.*Trulooh, for appellants.

*Iiall ds*Baldwin, for appellee.

Adams, J.

i practice in court"ev?-me deuce: trial. I. The bill of exceptions set out in the plaintiff’s abstract states that the plaintiff’ to sustain the issues uPon his part introduced evidence tending to show va,lue the plaintiff’s farm by the acre, and qUaiitity of land taken for the road, also the cost of building a board fence, one-half the length of the road along his land, to which the defendants objected, and their objection was overruled.

The said bill of exceptions also shows that the defendants, to sustain the issues on their part, offered evidence tending to show the value of the entire tract of plaintiff’s land, along which the road was located, immediately before the location of the road, and immediately after the location of the l'oad; also, that the plaintiff’s land was never fenced along the line of the located road, and that the same was out-lying timber land. To this evidence objections were made by the plaintiff, and sustained by the court. The appellee denies that such bill of exceptions -was filed, and sets out the bill of exceptions which he says was filed, which.bill of exceptions refers to the reporter’s record, but does not set'out the said record, nor any part of it. If, therefore, the appellee’s statement is correct, the record so far as the abstract shows contains no part of the evidence, or statement as to what the evidence tended to show. The appellee’s statement is taken .to be true unless it in turn is denied by the appellant.

As it does not appear what the evidence was which was admitted or excluded, we are unable to say that appellants were prejudiced by any rulings of the court in relation thereto.

2i_. al3_ stract;. II. According to the appellant’s abstract the court instructed the jury in substance, that they should allow as the value of the land taken for the road the amount per acre which the farm taken as a whole was worth. The *300appellee denies that the record shows that any such instruction was given in the case. The appellants do not in turn deny the truth of the appellee’s statement, and it must, therefore be considered as confessed.

Such being the condition of the record, the judgment of the court below must be

Affirmed.