(dissenting). I am reluctantly constrained to dissent from some of the positions taken by the majority of the qourt, and also from the judgment of reversal.
The statute requiring a husband to be made a party in *239case the proceedings seek to affect the property of a married woman was not complied with in the original proceedings, and the petition was also radically defective on account of the failure to allege either the value of the property in controversy, or the amount involved in the action. The county court was therefore without jurisdiction, and these proceedings were consequently void. Gen. Laws 1877, p. 397, § 2; Gen. St. § 485; Railway Co. v. Church, 7 Colo. 143; Water Co. v. Middaugh, 12 Colo. 434.
In the case of Water Co. v. Middaugh, supra, it was held that a party, having received and retained the damages awarded, would not be allowed to controvert the validity of the proceedings under which such damages were assessed; but there are several weighty reasons which prevent appellant from invoking this well-established principle in this case. In the former case the proper parties were before the court in the original proceeding; here one of the necessary parties was omitted. In the former case the estoppel was fully pleaded; here it is not. . It is also contended by appellee that this question is res judicata in this case, as the county court entered an order setting aside all former proceedings subsequent to the filing of the original complaint, which order was entered upon motion of appellee, made upon her first appearance in the action, and before the final rule for possession had been entered under the statute, although six years after the award had been made; the argument advanced being that as it does not appear that appellant, although present and resisting the motion, made any effort at this time to show that the award should stand for the reason that appellee was estopped from denying the validity ©f the former proceedings because of having accepted the fruits thereof, as well as for the reason that no exception was taken to the order of the court setting aside such award, that it is now estopped from claiming sueh payment. The facts relied upon as *240constituting the estoppel were as well known to the appellant then as now, and it is argued that they might have been urged in opposition to that motion, and that the decision thereon must be taken as res judicata, in reference thereto, whether they were so urged or not. The determination of this question, however, becomes unnecessary under the views which I hold upon other points presented in the case.
The proper parties were not before the court in the first instance, and in this respect the case differs from the Middaugh Case. A familiar principle to be held in mind in the consideration of cases like the one at bar, in which private property is sought to be taken for public use without the owner’s consent, is that the statute must be strictly followed; otherwise the proceedings will afford no justification for such taking. Sedg. St. & Const. Law, ch. 10; Mills, Em. Dom. § 87.
By the statute of this state, under which all the proceedings in this case have been had, it is made imperative, in case the proceedings seek to affect the property of married women, to join the husband as a party. The statute requiring this to be done was enacted in 1877, three years after the passage of the enabling act of 1874, by which married women were released from the disabilities of coverture in reference to their individual property. While, under the act of 1874, the wife might voluntarily dispose of her separate estate in all respects as though she were unmarried, by the subsequent statute it is provided, in case her property is sought to be taken for public use against her will, that the husband shall be made a party to the proceeding. It is not necessary for the courts to advance arguments for the distinction made by the legislature. It is sufficient to know that such distinction exists; and it is not the province of the courts to repeal the law or construe away its mandatory provisions, as we are asked to do in this case. Had the proper persons been made parties defendant to the action, and *241they had accepted and retained the amount of the first award, such retention and acceptance of the fruits of the void proceedings would have estopped them from denying the validity of the award, if presented in the first instance; but it does not follow that payment to the wife, if made under the circumstances of this case, would, have had the same effect, the husband not having been made a party to the action.
It is claimed, however, that the former proceedings, if followed by the payment of the amount of the award by the appellant, with its reception and retention by appellee, gave appellant the equitable title, leaving only the bare legal title remaining in appellee to be condemned, for which nominal damages only could be awarded. A diligent search of the record of the trial fails to disclose that any question in reference to nominal damages was presented in the court below; and petitioner ought not to be heard upon this question for the first time upon appeal, even if the petition itself had been so framed as to have permitted such proof. Upon the trial appellant contended that the value of the property at the time of the original taking was the true measure of damages, and offered evidence upon such value. This was in direct opposition to the claim now advanced — that appellee is entitled to nominal damages only. In this connection the allegations of the petition also become important, in -order that we may determine just what questions appellant is entitled to litigate in this proceeding, and what matters, if any, it should be held estopped from contesting.
The second amended petition superseded the former pleadings, and upon this the parties went to trial. In this pleading title in appellee is not only admitted, but it is expressly alleged that compensation for the property could not be agreed upon between the parties, and the court is asked to determine the amount of the same. In construing this pleading the former adjudications of this *242court upon the statute may be examined with advantage. In Knoth v. Barclay, 8 Colo. 300, it is said: “ Proceedings of this nature are sui generis. They are purely statutory, and in many important particulars are wholly unlike our ordinary civil actions under the code.”
Again, in Railway Co. v. Haggart, 9 Colo. 347, it is said: “We are of the opinion that when one files his petition, naming a respondent, and seeking the condemnation of certain specified property, the petitioner thereby, in the absence of special averment to the contrary, admits such • title in the respondent named as authorizes the assessment of full compensation for the taking of the premises described, or the injury thereto.” By the first of these cases it will be seen that the rule of liberal construction enjoined by the code for the ordinary civil action can. have no application to a proceeding of this nature; while the latter case is valuable in that it determines that complete title is admitted in respondent, unless the petition contain a special averment to the contrary. I am unable to find any such averment in the petition in this case. If any such exists it must be gathered from the allegations contained in the sixth paragraph, which paragraph is as follows, viz.: “That just previous to such taking and occupancy of said lots, in 1877, an attempt was made by plaintiff to have such compensation assessed in this present action; and such proceedings were had, and such things done, that the sum of $180 vras then, to wit, on or about the 10th day of October, 1877, paid by plaintiff to said defendant, Cora Allen, and by her accepted as for and on account of such compensation.”
While here the former proceedings’are mentioned, and the payment of the sum of $180 is alleged as having been made and accepted as for and on account of such compensation, nothing is stated in reference to any previous award having in fact been made; and in my opinion the most that can be said in reference to these allegations is *243that they were made in pursuance of an attempt on the part of appellant to recover back that sum of $180. That such was the intention at the time was also manifest from the prayer of the complaint, which is as follows: “'Wherefore this plaintiff prays that the compensation to be paid to said defendant, Cora Allen, for and on account of the said taking and occupancy of said lots, this honorable court will cause to be assessed; that this plaintiff do have and recover from said defendant, Cora Allen, said sum of $180, with interest thereon from said 10th day of October, 1877; for judgment against said defendantj Cora Allen, for the sum of $180, with' interest thereon from the 10th day of October, 1877; and for such other and further relief as to this honorable court may seem proper, just and equitable.”
Appellant was here seeking to recover the amount back which it claimed was paid appellee under the former proceedings; which position is entirely inconsistent with its present claim that appellant is estopped from denying the validity of such proceedings by reason of having accepted the fruits thereof, as well as inconsistent with the claim advanced, to the effect that, if appellee was not bound by the original award, it was nevertheless competent for appellant to show that a voluntary sale of the premises was thereafter made by appellee to it, the consideration for such sale being the amount found due upon the first award. Such proof would have been in direct contradiction of the allegation that compensation could not be agreed upon. The petitioner was bound by the averments contained in its pleading. It could neither contradict the same, nor be-allowed, against objection, to introduce proof to extend the issues beyond such averments. Aside from this, the rule allowing the petitioner in proceedings under eminent domain acts to condemn interests less than the fee-simple title has, I think, never been'extended to cover a case in which the petitioner has a complete equitable title to the premises, is in pos*244session, and entitled to an absolute conveyance, as now claimed in this case. Certainly, no case cited by counsel sanctions such a proceeding, and, upon principle, I am of the opinion that the equitable remedy can alone be pursued under such circumstances. There is nothing in Railroad Co. v. Strange, 63 Wis. 178, inconsistent with this view; in fact, the opinion of the Wisconsin court will be found to be in direct support thereof. The respondent in that case filed a counter-claim, and pi’ayed condemnation and compensation, as was permitted by the Wisconsin statute, and for this reason alone the cause was held for determination upon its merits. That the proceeding would have been dismissed in the absence of such counter-claim is apparent from the following quotation from the opinion of the court: “The purpose of the petition seems to have been to quiet the company’s title to the laud in question, under section 1852, Revised Statutes, on the assumption that it had already acquired a permanent right to the same. It may be questionable whether such petition could be maintained for the mere purpose of quieting title. Where that is the only purpose, it is not perceived why a railroad company should not bring its action therefor the same as any other party.”
The petitioner’s claim for judgment for the $180 could not be allowed in this proceeding, as, under the statute, the province of the jury is limited to the ascertainment of “the value of the lands or property actually taken,” and the assessment of compensation therefor, and the ascertainment and assessment of ‘ ‘ the damages, if any, to the residue of such land or property,” with the “amount and value of the benefit;” and in view of the nature of the proceeding, as -well as the allegations of the petition, I am of the opinion that, as the case was presented, the defendant could not have been legally required to meet any issue in reference to the alleged payment of $180. The only error, therefore, committed by the court in its ruling upon appellee’s motion to strike out *245tlie sixth and seventh paragraphs of the petition, in my opinion, was in overruling such motion as to the sixth paragraph, and this was in appellant’s favor; but as the court, upon the hearing, refused to permit the introduction of evidence in support of this paragraph, the previous error was cured. What has already been said of the pleadings disposes of the assignment of error predicated upon the refusal of the court to admit evidence of an outstanding tax-title. Such evidence was not admissible under the issues.
The burden of proof being upon the appellee, the necessity for the taking being admitted, it was not error to allow the respondent to open and close the case. Neither was it error to hold that the measure of damages was the value of the property at the time of the assessment. St. Em. Dom. § 17.
I am of the opinion that the judgment of the trial court should be affirmed.
Reversed.