The following opinion on rehearing was filed October 20,1904. Judgment of reversal adhered to:
Ames, C.This case is before us upon a rehearing from a former decision prepared by Mr. Commissioner Du fete and concurred in by Messrs. Commissioners Kirkpatrick and Let-ton. Upon a reexamination of the record, we do not find that in the preparation of the former opinion anything of importance was overlooked, or that the commissioners or court fell into any error. We do not think it incumbent upon us to repeat the recital of facts contained in the former opinion. There are two vital matters disclosed thereby upon which the conclusion is based, both of which, Ave think, are justified by the record. The first is that no *681damages -were appraised, or provision made for their payment, before or at the time of the attempted establishment of the alleged public road in controversy. Under the constitution of 1866 (article I, section 13), as Avell as under that of 1875 (article I, section 21), such omission defeated the alleged right to appropriate the land to a public use. If, as counsel for appellees, contend, the statute of 1866, under which the proceedings were had, contemplated that the right of the landowner should be treated as waived, by failure to demand compensation before or at the time of the taking, we are of opinion that to that extent the enactment was void. If the legislature could rightly require of the landowner one affirmative and initiatory act, as a condition precedent to obtaining damages, they might ivquire of him any other, or a series of acts which might be difficult or onerous or, in some circumstances, impossible of performance, and so the constitutional guaranty might thus be seriously impaired or wholly frittered away. We are of opinion that the spirit, if not the letter, of the constitution requires that the public seeking to appropriate private property to its use should, unless damages have been waived by some affirmative and unequivocal act, take steps of its own motion to ascertain their amount and secure their payment, and that mere passive acquiescence by an individual in the appropriation of property, unaccompanied by any conduct indicative of affirmative assent thereto, should not, unless continued for the statutory period of limitations, be regarded as a waiver of his rights. The second matter determined by the opinion, and about which the record leaves no room for doubt, is that the public have not occupied the lands in suit, continuously, for so long a time as is required by the statute to acquire, by that means, a prescriptive title to the alleged easement.
In view of these two findings, the conclusion at which the commission and the court arrived appears to us unavoidable, and we recommend that the former decision be adhered to.
Letton and Oldham, 00., concur,*682By the Court: For the reasons stated in the foregoing opinion, it is ordered that the former decision be adhered to.
Judgment of reversal adhered to.