In February, 1886, the defendant in error instituted proceedings in the county court of Saunders county, to condemn certain lots in the city of Wahoo, and in April *621following an award of damages was made and duly filed in the office of said judge. In May following, the railway company took an appeal from said award, to the district court of that county, and in May, 1887, moved to dismiss the appeal, and in June of that year the motion was sustained and the appeal dismissed.
The question presented to this court is, the right of the railway company to dismiss the appeal.
Under our statute, as it existed at the time of these condemnation proceedings, no bond was required of the party appealing. Comp. Stat., 1885, Ch. 16, Sec. 97. The court, therefore, in determining the question must consider the rights of the parties. The railway company, upon the filing of the award and the depositing of the money, take possession of the land condemned. The money is deposited with the county judge, for the use of the land-owner. If an appeal is taken by the company, upon the assumption that the award is too large,'and it afterwards considers that it is not, and seeks to dismiss its appeal, justice demands that it shall pay interest on the award thus made, as it has caused the land-owner to be deprived of the use of said money, and it cannot be permitted to dismiss its appeal without payment of such interest. The proper motion is to affirm the award, and not to dismiss the appeal. This would carry costs and also interest on theaward. .The court, therefore, erred in sustaining the motion to dismiss the appeal without requiring the company to pay interest on the award.
The judgment of the distinct court is reversed and the cause remanded for further proceedings.
Reversed and remanded.
Cobb, J., concurred. Reese, Ch. J., took no part in the decision.