(dissenting). — The question presented by this appeal is not whether defendant clerk is the owner of or entitled to the interest received by him, but is plaintiff the owner of it? A correct answer to this can, of course, only be made by determining whether plaintiff was the owner of the principal sum. It is true that under the law, on first appraisement, the railway company paid in the said sum of $9,200 “for the owner,” the plaintiff herein. The constitution is that the sum appraised “shall be paid to the owner, or into court for the owner” of the land. If it be paid to the land-owner, it is his money, of course, but, if it be paid to some third person for the owner, it does not necessarily become the owner’s money. He may decline *438or renounce it. It ought not to be said or thought that the ownership of the money could he forced upon him. Now, in this case, he rejected the appraisement and declined the money. He not only did this, but he resisted and combatted the poiuer of the railroad company to proceed in the condemnation of his land at all. As long as the latter point was in issue, the title to the land did not vest in the railroad company, but even if it did I cannot understand how we are to force the ownership of the money onto plaintiff against his will. His land is taken from him against his will, pro bono publico, but the public is not concerned in his refusal of the money. If the court had afterwards decided that the railway company had no authority to institute the proceedings, or if the company had confessed the point, the money deposited with the clerk would certainly have belonged to the railway company, and no act of plaintiff would have been necessary to return the money to the company.
When plaintiff refused the appraisement and denied the authority of the company to take his land,, the court sustained the authority of the company, but the jury awarded plaintiff $14,000 damages. The jury did not award him the difference between the sum deposited with the clerk and the sum of $14,000. It was not dealt with as a balance due, but this allowance was a judgment in plaintiff’s favor for the full 'amount thereof. It was not affected by the sum in the clerk’s hands which plaintiff had rejected. Its payment could have been enforced by execution.
There is another consideration which throws some light on the question: It is the law that where the railway company deposits the appraisement money and takes possession of the land, and, on appeal or exception, an increase is obtained, the land-owner is entitled to interest on the whole award from the date the com*439pany took possession. Pierce on Railroads, 222; Lewis on Eminent Domain, sec. 499; Evans v. Railroad, 64 Mo. 455. This being true, bow can the money deposited with the clerk and refused by the land-owner, be considered the land-owner’s money? If it is his money, he should not be allowed interest 6n the whole award subsequently made; he should only be allowed interest on the increase in the last award. -If, when the money was paid to the clerk for him, it amounted to a payment to him, then we have the curious feature of a creditor collecting interest on money after it has been paid to him, and the debtor paying interest on money .he has not withheld. "When the appraisement of the commissioners is paid into “court for the (land) owner,” the railway company may, notwithstanding such payment “for the owner,” take exception to the amount of the award as being excessive. From this it would seem to be clear that payment or deposit to or with the clerk for the owner does not vest the title to the money in the land-owner.
In the case of St. L. &. S. F. Ry. Co. v. Evans, 85 Mo. 307, the award by the commissioners was objected to by the railway company as being excessive, notwithstanding it deposited with the clerk, “for the owner,” the amount of the award. The land-owner in that case conceived the notion (the same that plaintiff is urging here) that the deposit or payment into court vested the title to the money in him, and the circuit court, coinciding with him, ordered it paid over to him. The supreme court held this to be wrong; that the title was not in him; that the money was in custodia legis. Now it would seem to be clear that the money does not become the land-owner’s when paid in “for” him, and he refuses to acquiesce in the award. For the much greater reason would it not become his when he not *440only rejects the award, but also challenges the very poiver of the company to condemn his land.
-1, therefore, dissent from the opinion herein.