I am of the opinion that the motion to dismiss the appeal should be sustained. The right of the state highway commission to acquire land for highway purposes without the consent of the owner thereof is conferred and measured by sections 4998 and 1480 et seq., of the Code of 1930, under which it can take possession of land for highway purposes without the consent of the owner when, but not until, it obtains a judgment adjudicating the compensation to be paid therefor and pays the owner the compensation so awarded him. The judgment in such cases, as is the one here rendered, set forth in section 1493 of the Code of 1930, is, after fixing the amount of the award, that "Upon payment of the said award, applicant can enter upon and take possession of the said property and appropriate it to public use as prayed for in the application." We are not concerned here with what power the Legislature might have conferred on the appellant in this connection, but only with what power *Page 172 it did confer on it, for the power conferred is in strict accord with section 17 of the Constitution.
The appellant accepted the benefit of the judgment appealed from by taking possession of the land thereunder, and thereby accepted also its burden, for the judgment is an entirety. Moreover, one of the rights of a defendant in an eminent domain proceeding is to have the jury view the land in order to determine the value thereof, and the amount of damages the defendant will sustain from the use thereof by the appellant. Should this appeal be allowed and result in the reversal of the judgment and the new trial the appellant seeks, this right of the appellees may be seriously impaired because of the changed condition of the land caused by the appellant's activities thereon.
McGowen, J., concurs in this opinion.