The plaintiff moved for a rehearing; and the same was granted, and the following opinion filed, at the February term, 1868:
Paine, J.We have concluded that we must grant the motion for a rehearing in this case. It is not, however, because we have any doubt .as to the correctness of the opinion already filed, upon the main point in controversy, which is the right of the company to have the land taken appraised in the method pointed out by the charter, at the value it had when taken, exclusive of the improvements put upon it by the company. The reasons for sustaining this right are well stated in the former opinion, and will not be repeated.
It is said by counsel, in the argument for a rehearing, that the former opinion “ lays stress upon the provisions of the law of 1856, which provides-what compensation shall be made.” If that law is valid, and applicable to the question, it is entitled to have stress laid on its provisions; for *590they are very clear and specific upon this point. It says expressly that the commissioners shall make an appraisement of the value of the land, “ at the time when the same was so entered upon and taken, whether such time was before or subsequent to the passage of this act,” etc. The argument impliedly concedes that if this provision is applicable, it disposes of the question. But it is said to he inapplicable, for the reason that this court has held void the section which contains it, being section 2, chap. 280, Laws of 1856.
We do not so understand it. It is true, this court has held, in Shephardson v. R. R. Co., 6 Wis., 612, Powers v. Bears, 12 Wis., 222, and other cases, that similar provisions are inadequate to authorize a company to take and hold possession of land against the will of the owner without first making compensation. If it attempted to hold permanent possession without this, the owner was entitled to an injunction. But it has nowhere been held that if, after the company had located its route, it should then procure the appointment of commissioners, and obtain an appraisal of the value of the land taken, and tender the amount to the owner under a charter like the one in question, this would not give it the right to enter upon it and hold possession afterwards. Thus in Shephardson v. R. R. Co., 6 Wis., 612, the court says: “We are of opinion that this act, so far as it attempts to authorize the taking and use of the land of individuals by the company, without making any compensation or providing any means by which compensation can be obtained by those whose property is taken, is repugnant to the section of our constitution above cited.” This, by its terms, confines the invalidity of the act to that part of it which authorized the company to take and hold possession without making compensation. But this being conceded, it by no means follows that the mode of ascertaining the *591compensation therein provided was invalid. It is true, the court in that case, in a subsequent part of the opinion, assumes that the provisions of the act in regard to taking land were entirely inoperative, and therefore ’the provisions of the former act, of which it was amendatory, were not repealed. But that question does not appear to have been involved in the case. And that conclusion did not follow from the real point decided. 'Whatever effect, therefore, that intimation might have in respect to the charter there involved, we do not think it should he regarded as settling the question in respect to other charters. Neither that act nor the act here in question was liable to the objection that existed in the case of Powers v. Bears. The appraisers in the Shephardson case were to be appointed'by the circuit judge, in this by the supreme court or one of the judges. This must be held to secure a fair, impartial appraisement. And where this is provided for, we can see no reason for saying that if a company resorts to it, and pays or tenders the amount awarded, this would not be a valid proceeding, and give the right to take possession afterwards, even though other provisions in the same act, which attempted to give the right to take and hold possession without doing this, should be held void.
This view is entirely in harmony with the decision in Loop v. Chamberlain, 20 Wis., 135, where this same act was to some extent in question. The counsel for the company there suggested that the act was void. But the court does not so intimate. On the contrary, it seems to assume- that the company might proceed under it and secure a proper appraisement, and then, by -tendering the amount, get the right of possession. And it held that until this was done the company was liable in trespass.
If, then, the provisions of this act prescribing the mode of appraising the value of the land, which, of course, would *592include everything that the owner was entitled to receive as compensation, are valid, it follows that the clause above quoted, confining the value to the time when the land was taken, is also valid, and establishes clearly the legislative intent to except these cases from the common law rule that industrial accretions enure to the benefit of the owner.
I think such an exception would be fairly implied from the very nature and object of the right of eminent domain, which is delegated to these companies, as was held in the former opinion. I should be willing to rest the conclusion upon that ground alone, if necessary. Titles are often complicated ; and the proceedings to divest title must comply strictly with the statute. And it is not to be supposed that where the state delegates to one of these companies its power of em'ineñt domain, and authorizes it to take the land of individuals for the construction of great public works, it intends that in every case of failure to acquire a perfect title, the value of all the improvements constructed in the meantime should enure to the benefit of the owner. Upon the reasoning of the appellant’s counsel, if a company should enter upon land, after defective proceedings to obtain title, and build a costly depot or bridge, if it afterward became necessary to resort to’ new proceedings to ascertain the damages, the owner would be entitled to have the depot or bridge estimated according to its value, and to be paid accordingly. Such a conclusion is contrary to natural justice. It is not at all sustained by the decision in Hill v. La Crosse R. R. Co., 11 Wis., 214. It was there claimed that a railroad company should be exempt from the operation of the mechanics’ lien law; that it should be allowed to absorb the labor and materials of‘another, without being subjected to the remedies which the law gives to secure payment. Ve held that it was entitled-to no such exemption. But it is here claimed that the land owner should be *593entitled to absorb tbe labor and materials of tbe company, without payment and without remedy. Tbe same principle of justice which prevented the result claimed in that case should prevent that claimed here.
The common law rule was founded upon transactions between private individuals. It undoubtedly, in many cases, worked great injustice and hardship. This has been remedied to some extent by the law allowing one who has in good faith made improvements on real estate, believing he ' had a good title, compensation on being ousted under a better title. But without any statute establishing an exception, it ought not to be held applicable to a case involving an exercise of the right of eminent domain, in the execution of works of sufficient public interest to justify invoking that right.
I think, therefore, that the case is not only without the reason and beyond the scope of the common law rule, but that it has a statute creating it an exception.
If the conclusion were to be rested upon the statute alone, it might be necessary to show that the improvements in question were placed upon the land after its enactment. Counsel admits that such was the fact, though he says it does not appear, as I believe it does not.
But notwithstanding we adhere to the former opinion upon the real merits of the controversy, we have determined that the motion for a rehearing must be granted, for the reason that it seems to us that the facts stated do not constitute a defense. The company has not yet proceeded under its charter to obtain an appraisement. And it would seem that therefore the facts stated can at most be held ground for a stay of proceedings until those steps can be taken. The court cannot grant the relief sought until that is done. That portion of the answer seems therefore to be, strictly speaking, demurrable. And the re-argument that *594is ordered will "be confined to the question, whether, admitting the right of the company to have the lands appraised at the value when taken, exclusive of the improvements, the answer .does not still fail to show a right to the relief sought, because it does not show a proper appraisement under the charter, with a readiness to pay the amount.
By the Court. — Rehearing granted.
At the same term, without further argument, the order of the circuit court was reversed, with costs, and the cause remanded.