I concur in the views- expressed by Justice CORSON in this case, but desire to refer briefly to the proposition last discussed in ihe decision.
It seems to me this action in legal effect should be viewed as a condemnation proceeding, which the law permits the property owner to initiate because the corporation has not done so. It is not an action for damages for trespass, nor an action for the value of land wrongfully taken and appropriated by the defendant company. It is true that, as to the public and its duties as a carrier, the company may have assumed obligations which might estop it from denying its ownership of plaintiff’s land to the. injury of the public,- and it is equally true that on grounds of public inconvenience the property owner may n-ot resort to ejectment or injunctional relief, when he has been guilty of laches in seeking these remedies. But the public has no interest in the amount of *17compensation which should be paid the owner whose property the corporation intends to appropriate, under the right of eminent domain, and no public interest or right requires discussion in that connection. The Constitution of the state declares that “private property shall not be taken for public use or damaged, without just compensation as determined by a jury, which shall be paid as soon as it can be .ascertained, and before possession is taken.” Under this provision, a corporation is powerless to acquire any rights or fix any liability,, as between itself and the property owner, by wrongfully taking possession of private property. To hold otherwise would be to allow a trespasser to found rights upon its own wrongful acts.
In such an action as this, therefore, the compensation to be paid an owner of property should be determined under precisely the same rule as though the corporation itself had begun a condemnation preceeding at the date of the beginning of this action. Such a rule of compensation would be equally just to both corporation and property owner, because at all times it was within the power of either to begin an action, and thus fix the date at which the value of the property, as a measure of damages, should be estimated by the jury, and neither could justly complain of injury by reason of enhancement or depreciation to value of property. It would seem that any other view may easily result in confusion of rights and remedies, and an abandonment of fundamental principles of law which should govern the rights of both corporation and the owner of property.
WHITING, J.While I agree, in the main, with the conclusions reached by my learned colleague, as such conclusions are set forth in the foregoing opinion, yet I am of the opinion that the learned trial court was in error upon at least one proposition, and that such error necessitates a reversal of the judgment of such court.
Various questions involved in this case, while new to the courts of this state, have been before the federal courts and the courts of many of our sister states in cases almost without num*18ber. An examination of the decided cases -shows an irreconcilable conflict of reasoning and conclusions upon many points. This conflict probably arises partly from differences in the constitutional provisions of the several states pertaining to the right of eminent domain, from differences in the statutory provisions relating to remedies and proceedings for condemnation of property under the right of eminent domain, and, perhaps, even more from the nature of the particular action in which the views of the court happened to be expressed; but, allowing for all these basic causes for different conclusions, one would be unable to harmonize the almost numberless decisions. Before entering upon a discussion of tile specific question upon which I am unable to agree with the views of my colleague, I believe a further discussion of the fundamental principles undertying the right of eminent domain and the right to damages for property taken thereunder may be of value.
The right of eminent domain is one antedating the governments of this country; it is a right inherent in the sovereign power, and could be exercised by such sovereign power, were there no constitutional provisions in relation thereto; the only need and the object of the constitutional provisions is to limit the exercise of the right that it may not be abused; it is the right of the sovereign power to condemn and take for public use the property of a private individual; it is a right inherent in society, and founded upon the principle that the rights of society as a whole are superior to those of an individual. This power to take property under the right of eminent domain, under our Constitution, may be delegated to persons and corporations. Under such delegated authority, property can only be taken for purposes recognized as essential to the public welfare. From the very nature of this right and the reasons upon which it is based, the public is an interested party in every taking or proceeding to take property under such right and the public’s rights and interests should at all times be kept in mind in proceedings involving the’right of eminent domain. Justice is guaranteed to the owner of property taken, by that provision of our Constitution providing that private property cannot be taken “with*19out just compensation, as determined by a jury, which just compem sation shall be paid as soon as it can be ascertained and before possession is taken.” One thing well to bear in mind, in the consideration of rights and liabilities and remedies therefor in matters of eminent domain, is that, given a proper person or corporation and a proper use to which the property is to be put, such person or corporation has the absolute right to acquire the property or use thereof, with the accompanying right in the owner to be paid for his property or the use thereof. It will thus be seen that there is an inherent difference between a case-where a'person or corporation has wrongfully entered upon and taken possession of the property of another, to which property or the use thereof it had no right whatsoever, the person or corporation so taking the property not belonging to a class authorized to take such property, or the taking of such property not being for a purpose warranting such taking under the power of eminent domain — and a case where a person or corporation, authorized (as in the case at bar), under the facts alleged and proven to take the property for the purposes for which it did take the same, took it without first having the compensation to owner assessed, and paying same. In the one case there is a taking of that to which and in which the party taking has no rights whatsoever; in the other, the party taking has the right to the property, or the use therepf, subject to performance of certain conditions precedent. While in both cases the entry and taking of possession are wrongful, yet there is an inherent difference in the rights of the parties, and in the nature and extent of the damage inflicted, that may well give rise to different remedies and different measures of damages. In either case, if the wrong is merely threatened, injunction might lie to prevent same;.and, under some circumstances, even after actual entry and taking of possession, if the innocent party moves speedily, injunction might iss.ue to restrain the wrongdoer 'from altering or using the property. So, also, in either case, where the injured party acts speedily, he could undoubtedly bring the ordinary action to recover damages for trespass, or bring ejectment to regain the possession of the-prop*20erty and recover damage for its use; he might, also, in either case, have a right to waive the tort and sue in assumpsit for the value of the property. All of the above remedies would be founded on rights and remedies not in any respect traceable to the law of eminent domain. Fet it be borne in mind that a party entitled 'to acquire property under the right of eminent domain can acquire the title to such property, or the light to use the same, in one of three ways' — by purchase, under right of eminent domain, or by prescription.
Why should not the owner of land that has been taken without compensation be allowed to say to one who took his land under circumstances such as appear in this case: “You had a right, for the public welfare, to take my land for the use you have put it to; you have taken my land and put it to such use; the land is still mine; I recognize the right of the public to have my land so used; I do not care to enjoin such use, nor to eject you from the land, and it might be inequitable to do so; you should have taken steps to ascertain what recompense I was entitled to for the taking of my property for this use; you failed to • do. so ; I was damaged by your wrongful entry and use of my premises, the amount which a jury would have allowed me, at the time of your entry, as recompense for the taking of my lands for such use; you have acquired neither the title nor the right to use my lands; I should be allowed-the right to have the recompense I am entitled to determined by a jury, and you should pay the same, as the interest of the public require that you use my premises permanently; when you occupied and used these premises, you estopped yourself from saying that you did not take same under right of' eminent domain, and intended to recompense me therefor ; I hold the title to this land as security for the payment of such recompense, as I am entitled to under the Constitution; you have so connected this right of way w-ith the remainder of the right of way used by you that the rights of the public would be harmed by the separate sale thereof; therefore, in order to protect me and at the same time protect the rights of the public — which public rights lie at the very foundation of any rights *21which you can claim herein — my lien should be held to cover all, of your right of way; if you do not pay the recompense fixed by the jury, I should have a decree for the sale of the whole of such right of way to satisfy my judgment.”
And why should not such owner be entitled to say to a purchaser from the party who took said land, and to a person claiming under such purchaser: “The records show that your predecessor had never acquired a right to these premises or their use, by purchase or condemnation.; you were .therefore not an innocent purchaser; and, when you took said premises and continued to use the same for right of way, you took them subject to the rights which I had in same.”
I would call particular attention to the complaint herein, and would ask if, under the same, the plaintiff’s relief sought is not strictlv in accord with the thoughts expressed in the foregoing; queries. What is the nature of the action? The complaint sets forth facts showing that this property was originally taken by, and has at all times been, used by corporations and persons authorized, under the facts pleaded, to have condemned and taken the property under right of eminent domain;-that the property has been used for purposes authorizing such condemnation and taking;: that there was no such condemnation; and that plaintiff has never been recompensed therefor. The complaint asks that the defendants be required to commence proceedings t'o have the recompense plaintiff is entitled to ascertained by a .jury, and that the judgment for such recompense, when found, be a first lien on the railroad and its appurtenances. The theory upon which this complaint was drawn was clearly not that of bringing anyone of the actions that would lie against an ordinary trespasser, but was exactly in line with the special rights and remedies suggested above.
I think it clear in reason that such an action will lie, and the authorities are numerous in support of the principles underlying same. The nature of this action seems to be similar to that of Stauffer v. East Stroudsburg Borough, 215 Pa. 143, 64 Atl. 411, in which the court said: “The plaintiff proceeded under his stat*22uiory right for damages alleged to have been suffered for one appropriation, treating -it as having been lawfully made, and not bringing an action for alleged trespass by virtue of an unlawful .taking.” See In re Clark v. Water Commissioners, 148 N. Y. 1, 42 N. E. 414. I would call particular attention to the opinion of the court in Organ v. Memphis & L. R. R. Co., 51 Ark. 235, 11 S. W. 96, where, in a case similar to this the court says: “But the owner may waive formal condemnation proceeding's, and all formal modes of transfer, and elect to regard the action of the railroad company as taking the land under the right of eminent domain, and demand and recover just compensation. * * * When, therefore, he elects to demand compensation for land necessarily used in the contraction of a railroad, he assumes a relation to the railroad compan}" like unto that of a vendor who sells his land on time, and retains the title, and agrees to deliver it when the purchase money is paid.” See, also; Rio Grande & E. P. Ry. Co. v. Ortiz, 75 Tex. 602, 12 S. W. 1129, cited in the majority opinion herein; Bravord v. Cincinnati, H. & I. R. Co., 115 Ind. 1, 17 N. E. 183; and Strickler v. Midland Ry. Co., 125 Ind. 412, 25 N. E. 455.
But it seems to me clear that the measure of damages in such an action must be the recompense to which the owner would have been entitled at the time of the original taking- of the property, together with interest thereon since then. Furthermore this is the only equitable measure of damages in all cases. My colleague has cited several cases in support of the conclusion that respondent was entitled to the value of the land at time this suit was brought, or at time of the trial thereof. With the possible exception of the Arkansas case, there is not one of these cases that is in any wise in point. The case in 61 Ill. 115 holds that, where a law was passed authorizing the appropriation of certain described lands for public purposes the value at time of actual appropriation, and not at date law was passed, was the measure of damages. In 91 Ill. 49, it was held that, where a petition for condemnation had been filed, the date of such petition, and not the date of trial of action, was the date at which value of property *23should he fixed. In 141 Ill. 140, 30 N. E. 544, the petition was filed October 18, 1888, and amended several times; the last amend - ment being September 8, 1890. The court held that the value of the property on October 18, 1888, controlled. In 3 Or. 311, is not found an opinion of an appellate court, but merely the history of á trial in circuit court, where no reason or authority for the instructions of such court are given. In the cases found in 15 Neb. 224, 18 N. W. 51, and 35 Mo. App. 449, the holdings were that the time of the filing of the petitions by the railroad companies, and not some later date, such as date of trial of cause, was date at which value of property should be found, and both of these cases contain statements directly in support of my views herein; the Nebraska court saying, “The authorities seem to agree pretty generally that the damages in such cases must be assessed as of the time of taking,” and the Missouri court saying, “It was only the value of the property at the time of the appropriation which, under the law, was still open for judicial investigation by a jury.” I would cite in support of my views Van Huson v. Omaha Bridge & T. Ry. Co., 118 Iowa, 366, 92 N. W. 47; Stauffer v. East Stroudsburg Borough, supra; Daniels v. C., I. & N. R. Co., 41 Iowa, 52. In this last case the railway company' had been in possession of the land some 12 to 15 years, and it was not until after such long occupation that the defendant company brought proceedings to have the damages assessed. I quote with approval the following from the opinion in said case:
“Had they been instituted prior to, qr upon defendant’s taking the possession of the land, no different right would have been acquired by them than they obtain in the present action. In each case the measure of plaintiff is damages'is the same, namely, the value of the land, without regard to- benefits resulting from the improvement. Plaintiff, had the damage been assessed upon the occupancy of the land, would have received no compensation for its prospective uses, other than as these would enter into the estimate of • its value. The same matters now will determine the value that it would have then. It will be seen, in view of these considerations that the value of the ' land at the time of the ap*24propriation, with interest upon the sum assessed from that date until judgment in this case, is the just measure of plaintiff’s damages. This conclusion is supported by the further considerations that the remedy, by the same proceeding defendants have instituted, has been within plaintiff’s reach all the time since the occupation of the land by the defendants, and that a different rule of damages claimed by plaintiff, namely, the present value of the land, would, in case of the depreciation of the property after the appropriation, work manifest injustice to the landowner.”
As stated before, this is not an action in ejectment, nor an action to recover damages for the unlawful occupation and detention of the real property, but an action to recover for the wrongful appropriation thereof. As a result of this action, the title to the land will be vested in the defendant railway company. The action is very analagous to an action brought to recover damages for the conversion of personal property, and to my mind no better rule for measure of damages could be laid down than that prescribed by section 2315, Revised Civil Code, in case the injured party does not proceed with diligence, to wit, the value of the property at the time of the appropriation, with interest from that time.