Allen, J.
*7421. Original action revived against substituted plaintiff in error securing reversal. *741The first proposition urged is, that more than one year elapsed after the consolidation of the two railroad companies without any proceeding in the District Court to revive the judgment against the new corporation. It is insisted that the cases of K. O. & T. Rly. Co. v. Smith, 40 Kan. 192" court="Kan." date_filed="1888-07-15" href="https://app.midpage.ai/document/kansas-oklahoma--texas-railway-co-v-smith-7887466?utm_source=webapp" opinion_id="7887466">40 Kan. 192; Kunkle v. Railway Co., 54 id. 194, and C. K. & W. Rld. Co. v. Butts, 55 id. 660, are decisive of this case, and that under these authorities the action in the District Court was dead, and could not be revived without the consent of the Railway Company. Counsel for the defendant in error has argued at length, both orally and in the brief, against the soundness of the rule declared in these cases ; but we are not disposed to re-examine the question. This case, however, is different from either of those cited. The new company voluntarily took the place of the old in this Court. The only purpose of the proceeding here was to reverse a judgment fo.r the payment of which the new company was liable. The error complained of here, and for which the judgment of the District Court was reversed, was in the refusal of the trial court to grant the defendant anew trial. The new company was, therefore, after being substituted as plaintiff in error here, prosecuting an action in this Court to obr tain a new trial in the District Court. This Court, at its instance, reversed the judgment of the trial court *742and granted it the new trial it desired. The mandate of this Court thereupon x lssue(l to the lower court commanding it to grant the new trial — not to the old, dead company — but to the new, living company which had taken its place. Can it be that, after having asked and obtained through the command of this Court a new trial of the case, it may still urge that it has never consented to become a party in that Court? Can it be a party for the purpose of vacating and setting aside the judgment where the plaintiff’s cause of action still remains, and where this Court merely grants a new trial, and yet claim that it is not a party for the purpose of any further proceeding in that Court? We think it must take the burdens and benefits of the judgment obtained here, together ; that it must follow into the District Court the mandate sent there at its instance, and must abide the result of a new trial; that the substitution under these circumstances must be treated as having been made with the consent of ths defendant.
In the fourth instruction given by the Court, and excepted to by the defendant, the jury were told that the facts proved in this case did not constitute probable cause for the plaintiff’s arrest. Section 104 of the act concerning Crimes and Punishments, reads :
“ Any person who shall wilfully throw down, break, remove, displace, cut, split, burn, or in any manner destroy or injure any of the rails, .sills, switches, cross-ties, piles, bridges, culverts, viaducts, parapets, or any other fixture of any railroad, or shall wilfully injure or destroy any embankment of any railroad within this state, now constructed or in process of construction, or of any railroad which shall hereafter be constructed, or be in process of construction in this state, shall, on conviction thereof, be punished *743by confinement and hard labor in the penitentiary not less than one nor more than three years.”
2. Land-owner tearing up track criminally liable. According to his own testimony the plaintiff wilfully removed a rail from the track of the railroad constructed and operated over his land. He also wilfully placed an obstruction on the track, which is made a crime by section 103 of the same act. His only justification for his acts was that he owned the land, and that, as the Railroad Company had failed to pay him the damages he had been awarded, he had a right to resume possession of it. What-_ . ever the rights of the defendant might have been in an action to recover the land occupied by the Railroad Company, he had no right to take the law into his own hands and proceed to tear up the railroad track. It may be that, on a trial as for a crime under the section of the statute quoted, the fact that he acted in good faith under the claim of right, might shield him from punishment; but, as his acts constituted a crime within the letter of the statute, there was probable cause for his arrest, and the instruction given was erroneous. Denver & Rio Grande Rld. Co. v. Harris, 122 U. S. 397; State v. Johns, 124 Mo. 379" court="Mo." date_filed="1894-11-05" href="https://app.midpage.ai/document/state-v-johns-8011474?utm_source=webapp" opinion_id="8011474">124 Mo. 379, 27 S. W. Rep. 1115; Clifton v. State, 73 Ala. 473" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/clifton-v-state-6511657?utm_source=webapp" opinion_id="6511657">73 Ala. 473.
Other claims of error are discussed in the brief, but as the same questions may not arise again we deem it unnecessary to discuss them in detail. The one already considered compels a reversal of the judgment.
All the Justices concurring.