dissenting.
I dissent because I believe (1) that the jury award did not compensate appellants for all of that taken, i.e. it did not consider compensation for the taking of appellants’ water rights, and (2) that the award was not supported by competent evidence.
I
The only evidence as to value came from two appraisers, one testifying for each side. Each appraised the property for livestock ranch use. They recognized that the land taken had high priority water rights and was irrigated land. They considered the irrigable nature of the land, but they did not consider the value of the water rights in computation of just compensation.
Land should be valued at its highest and best use. Irrigated land has a higher value in most instances than pasture land. The fact that this land was recognized as irrigable and so valued does not mean that the water rights were included in the valuation. Even if land was not irrigated, if it were irrigable and thus have a higher and best use than that to which it was being put, the appraisal should be on the basis of irrigable land, i.e. for the highest and best use. Compensation for irrigated land is not compensation for the water rights. The legislature recognized the distinction in providing authority to move the water rights to another location in event of condemnation. Section 41-3-107, W.S.1977.
In this instance, neither court nor counsel presented the issue of compensation for the water rights to the jury.1 Ordinarily, this would cause us to go no further with the issue. However, compensation for the water rights and the impracticability for transferring them surfaced previously in the long judicial examination of this matter, and we said in Associated Enterprises, Inc. v. Toltec Watershed Improvement District, Wyo., 578 P.2d 1359, 1363 (1978) that:
“ * * * The requirement under the statutory provisions for condemnation that this impairment must be compensated for in a just manner nullifies any equitable argument on the part of the prior appropriator.” (Emphasis added.)
The quotation was in connection with a discussion and ruling on whether or not the reservoir would “impair” appellants’ water rights, particularly in view of the legislative *1149direction in connection with watershed improvement districts that
“Nothing in this act [§§ 41-8-101 to 41-8-126] shall be so construed as to in any manner impair existing water rights, appropriations or priorities.” Section 41-8-126, W.S.1977.
I believe that, having decided that the water rights in this case are a proper subject for condemnation and having made compensation for them one of the grounds for the holding in the first appeal of this case, the statement that they “must be compensated for” should have been complied with when the condemnation was finally accomplished.
“Private property shall not be taken for private use unless by consent of the owner, except for * * * reservoirs * * * nor in any case without due compensation.” (Emphasis added.) Article 1, § 32, Wyoming Constitution.
“Private property shall not be taken or damaged for public or private use without just compensation.” (Emphasis added.) Article 1, § 33, Wyoming Constitution.
II
The jury award is not founded on valid valuation evidence. As noted, the only evidence of value came from two appraisers, one for each side. Appellants’ appraiser, using an animal unit approach to valuation, placed a value on the ranch before the taking at $730,0002 and after the taking at $590,0003 resulting in just compensation of $140,000. Appellee s appraiser, using a per acre valuation approach, placed a value on the ranch before taking at $700,500.4 To reach his after value, he testified to the potential for cabin sites and attributed a benefit value therefrom, resulting in an after value of $650,336 and $50,160 just compensation.5
The appraisement by appellee’s appraiser was faulty in including a benefit value in his computation inasmuch as his computations were made on a per acre basis. Ap-pellee’s condemnation power results from § 41 — 8—113(a)(iii), W.S.1977, which directs that it is to be “in the manner provided by law for the condemnation of private property for public use.” Thus, the rule of damages applicable to this case is:
“In estimating the compensation for all property actually taken, the true value thereof, at the time of the appraisement, shall be allowed and awarded; and in estimating the compensation for damages occasioned to other portions of the claimant’s property, not actually taken, the value of the benefits, or advantages, if any, to such other lands may be deducted therefrom.” Section 1-26-203, W.S. 1977.6
Under this rule, the benefits can be set off only against the damages to lands of appellants other than that taken — not against the value of the property actually taken for which “the true value thereof * * * shall be allowed and awarded.” See 3 Nichols on Eminent Domain §§ 8.6207 and 8.6211[51]; Orgel on Valuation Under the Law of Eminent Domain § 64 (2d ed. 1953); *1150State Highway Commission v. Rollins, Wyo., 471 P.2d 324 (1970). By allocating value on the basis of acreage taken, as done by appellee’s appraiser, benefits cannot be subtracted therefrom under the aforesaid rule of damages. Accordingly, the jury could not properly consider the testimony of appellee’s appraiser.
Therefore, the only proper testimony on value before the jury was that of appellants’ appraiser. Since the jury did not make an award in conformance therewith or within the scope of the valuation testimony, the jury’s award cannot stand. There was no substantial evidence in support of the award.
For one or both of these reasons, I would reverse and remand for a new trial as to the amount of just compensation to be paid to appellants.
. Appellants’ counsel mentioned in opening statement that transfer of the water rights was impossible as a practical matter.
. Rounded off from $728,750 (275 animal units at $2,650).
. Rounded off from $642,836 (225 animal units at $2,625).
. Rounded off from $700,511 (on an acreage and use basis).
. Appellants’ appraiser considered the possibility of cabin sites as too speculative to compute in connection with his animal unit approach to valuation.
. This section was repealed by the Wyoming Eminent Domain Act (Ch. 174, S.L. of Wyoming 1981) which became effective July 1, 1981. The repeal will not apply to this case which was then pending. Section 8-1-107, W.S.1977, provides in pertinent part:
“If a statute is repealed or amended, the repeal or amendment does not affect pending actions, prosecutions or proceedings, civil or criminal. * * * ”