(dissenting).
I disagree with the majority opinion.
A.R.S. Title 12, Chapter 8, Article 2, entitled Eminent Domain, is taken substantially verbatim from California, Viliborghi v. Prescott School Dist. No. 1, 55 Ariz. 230, 100 P.2d 178, and we have repeatedly held that where a statute is adopted almost verbatim from another state we will either adopt the construction given it where it originated or look to such construction as of persuasive force if it is sound or reasonable. Stewart v. Verde River Irrigation & Power Dist., 49 Ariz. 531, 68 P.2d 329; Arizona State Tax Comm. v. Tucson Gas, Electric Light & Power Co., 55 Ariz, 472, 103 P.2d 467; Western Coal & Mining Co. v. Hilvert, 63 Ariz. 171, 160 P.2d 331.
A.R.S. § 12-1127, quoted at length in the majority opinion, is almost verbatim Section 1254, West’s Ann.Calif.C.C.P., which was enacted in that state in 1872, and amended from time to time thereafter. This section has been interpreted by the District Court of Appeals of California in Mt. Shasta Power Corporation v. Dennis, 66 Cal.App. 186, 225 P. 877, and thereafter a rehearing was denied by the Supreme Court of that state.
In Mt. Shasta Power Corp. v. Dennis, supra, the corporation brought an action to condemn certain riparian rights. After the interlocutory judgment had been entered the condemnor appealed. The condemnor had paid the amount of the award into court, and took possession of the premises sought to be condemned. It was held that payment of the judgment and taking possession of the property as provided by statute constituted a waiver of a right to appeal and that where the condemnor found it more profitable to comply with the judg*227ment and accept the fruits thereof than to suffer losses incident to an appeal, it cannot be said to render compliance with the judgment compulsory as affecting the waiver of the right to appeal. The court also stated that there was no provision, constitutional or statutory, giving the condemnor any right to recover any part of the compensation paid into court for the condemnee under the provisions of the statute, in the event of a judgment for a smaller sum upon a second trial.
Since the Mt. Shasta decision in 1924, the Supreme Court of California has approved of the rule announced in that case, and as late as 1958 reaffirmed its previous holding. G. H. Deacon Inv. Co. v. Superior Court, 1934, 220 Cal. 392, 31 P.2d 372; City of Los Angeles v. Deacon, Cal.App.1934, 34 P.2d 183 and later affirmed in 3 Cal.2d 641, 46 P.2d 165; In re Poisl’s Estate, 1957, 48 Cal.2d 334, 309 P.2d 817; People by and through the Department of Public Works v. Loop, Cal.App.1958, 326 P.2d 902.
I believe that the construction placed on the statute by the California courts, particularly in the Mt. Shasta case, should be adopted in construing A.R.S. § 12-1127. This statute requires that the court pay to the property owner the damages awarded by the jury so deposited by the state, but it makes no provision or requirement that any part of it shall be repaid in the event a smaller amount is obtained on a second trial. What then can the state gain by an appeal? This problem was answered in the Mt. Shasta case, where the court stated, 225 P. at page 881:
“Under statutes of other states autorizing a condemning party to take possession upon payment of the award and providing that the plaintiff shall be required to pay any additional sum awarded the defendant upon a second hearing, but making no provision for a recovery by the plaintiff in the event of a diminished second award, it has been held that by payment and entry into possession the plaintiff waives the right of appeal. Mayor, etc., of Jersey City v. Hamilton, 70 N.J.L. 48, 56 A. 670; Oregon Electric Ry. Co. v. Terwilliger [Land Co.], 51 Or. 107, 93 P. 334, 930; City of Portland v. Schmid, 82 Or. 465, 161 P. 560; City of Spokane v. Cowles, 67 Wash. 539, 121 P. 463. * * * ”
The constitutional and statutory provisions on eminent domain in the state of Washington are similar to those in this state. The state of Washington in two recent cases, State v. Smithroclc Quarry, Inc., 49 Wash.2d 623, 304 P.2d 1043 and State v. Laws, 51 Wash.2d 346, 318 P.2d 321, 322 P.2d 134, have passed on the identical problem here involved.
The Smithrock Quarry case, supra, was a condemnation action where the state had deposited the full amount of the judgment *228with the court and the funds were disbursed to the landowner who accepted it and satisfied the judgment; and thereafter the state gave notice of appeal. The Supreme Court of that state held that the appeal should be dismissed on the ground that it is moot because the judgment had been paid in full. That even though the state had a clear statutory right to appeal, such a right can avail the state nothing where the subject matter of the appeal is moot.
In the Laws case, supra, the state had paid into court the full amount of the judgment, at which time the state indicated that it was reserving the right to appeal. The state then took possession of the property condemned. The money, at the time of the decision, was still in the depository of the court. The problem presented was to determine whether or not the state, by paying into court the amount of the award, plus costs, and by taking possession of the property, waived its appeal. The court held that the appeal should be dismissed and stated:
“Under the statute, either party may appeal. No appeal by the property owner shall operate to prevent the state from taking possession of the property pending such appeal, if the amount of the award shall have been paid into court. The state, on the other hand, cannot take possession of the property and also wage an appeal from the judgment on the verdict. In order to take possession of the property, it must first accept the award of the jury and pay it into court for the benefit of the owner; as soon as it does so, it waives its right of appeal. The state ‘cannot have its cake and eat it too.’
“The state, in this case, has paid the amount of the award, plus costs, into court and has taken possession of the property. By doing so, it has accepted the award of the jury. The issue of ‘the propriety and justness of the amount of damage’ is no longer an issue. The question is moot.” State v. Laws, supra, 318 P.2d at page 322.
The state was given the option under A.R.S. § 12-1127 of retaining possession of the land taken and paying the judgment or of returning the land taken to the landowner and preserving its right to appeal. It chose to remain in possession and deprive the landowner of a portion of his land and the state is now bound by the choice made.
I would grant the motion to dismiss the appeal.
STRUCKMEYER, J., concurs in this dissent.