(dissenting in part).
■ I 'believe that a property owner who is not required to relinquish possession during the condemnation litigation period, , and who chooses to retain such possession while his right to compensation is being determined, ought equitably to be required to account for the reasonable value of the use of the property during, the period of his retained possession, and not-simply for such rental payments as he has actually collected from third parties, if he subsequently attempts to claim interest on his damage allowance from the time the condemnation proceedings were instituted.
The allowance of interest in a condemnation case in Nebraska is not a fixed statutory right, but simply ■ a means of insuring “just compensation” to the property owner. The only thing for which it can reasonably be held to constitute compensation is a deprivation .of the use of the property or of the funds substituted for the property, during the condemnation litigation period.
A property owner who is not required to relinquish possession, and who chooses to retain such possession and to enjoy the occupancy of the property and its other benefits, while his right to compensation is being determined, is hardly in the same commanding situation with respect to this element of “just compensation”, as one who has been forced immediately to vacate the property. And so a majority of the courts that have passed upon the question seemingly have held that interest ought not to be allowed during the period that the property owner, is allowed and, chooses to retain possession. See 18 Am.Jur. 916, § 275, and 96 A.L.R. 199, annotation. Some courts have taken the view, thaj.-interest *309may properly be allowed in such a situation, but that the property owner should be required to account for the value of the use of the property during the period of retained possession, as a set-off or reduction in the amount of the interest. See 32 A.L.R. 102, annotation.
The Supreme 'Court of Nebraska has-never expressly passed upon the question, but it has indicated in Ehlers v. Chicago, B. & Q. R. Co., 118 Neb. 477, 225 N.W. 468, that the allowance of interest in a condemnation case may in certain situations be controlled by the equities involved. Until it declares otherwise, I believe we should assume that that Court will follow the general law, at least so far as to require the value of the use of the property, during the period of retained post session, to be credited against such interest allowance as may be designed to insure to the owner “just compensation” for the deprivation of the use of the property or the funds which represent its substituted equivalent.
I am not quite able to see the logic or warrant for restricting the offset in such a case to the cash which the property owner has actually collected, and on this point, therefore, I respectfully dissent.