1. We will consider the causes of action in inverse order to which they are presented. As there is no evidence of damage by reason of defendant’s occupation of the land, even if such occupation was wrongful, plaintiffs could recover only nominal damages. In the absence of showing special or other damages, these nominal damages were amply compensated by the payment of interest on the amount of the award from the date thereof until June 7, 1918. The fact that the amount awarded plaintiffs was paid by the clerk to the state land board to be applied on the mortgage, instead of being paid to plaintiffs, can have no bearing here. Such payment was strictly in accord with the preliminary judgment rendered in the condemnation proceedings, which was affirmed by this court, without, so far as appears from the opinion in that case, any objection upon that ground urged by these plaintiffs.
2. It is contended with some show of plausibility that the failure of defendant to enter the mandate of *624this court to pay the award and to obtain a final judgment of condemnation for a period of over 27 months after the preliminary judgment of the Circuit Court in the condemnation proceedings constituted an abandonment of such proceedings. It is thoroughly established by the decisions that, where a preliminary judgment fixing the amount of compensation to be paid the owners of property is rendered, it is incumbent upon the corporation to pay that amount within a reasonable time, and thus secure a final order, or it will be deemed to have abandoned the proceedings; the unreasonable delay being considered conclusive evidence of an intent not to accept the property upon the terms and at the valuation by the court or jury: Bensley v. Mountain Lake Water Co., 13 Cal. 306 (73 Am. Dec. 575); Chicago v. Barbian, 80 Ill. 482. A judgment fixing the value of the land is not in this state an authorization to the party condemning to take possession of the premises. It merely puts such party in a position where by paying into court the ascertained value of the tract sought to be condemned he can thereafter use the property for the purpose for which condemnation is sought. Since this is true, the defendant was not authorized by virtue of its preliminary judgment fixing the amount to be paid to take possession of the land sought to be condemned, without complying with the law requiring the value ascertained by the court to be paid to the clerk for the owners or others whose interests entitle them to compensation.
3. Nor are we of the opinion that the fact that the plaintiffs here promptly appealed from the preliminary judgment assessing damages dispensed with the necessity of the railway corporation’s paying over to the clerk the damages assessed. It is [¡rue that Section 7104, Or. L., provides that such appeal “shall not stay *625the proceedings so as to prevent snch corporation from taking such lands into possession and using them for the purposes of the corporation,” etc. But, before doing so, the compensation must be “first assessed and tendered,” as required by subdivision 18 of Article I of the Oregon Constitution.
4. Whether the failure of plaintiffs to object to the corporation’s taking immediate possession and constructing its road upon the strip in controversy amounted, under the circumstances, to a license so to do, is not material in view of the fact that no damages have been shown to have resulted from the act, and further taking into the account the fact that plaintiffs received interest upon the amount of the original assessment, to which interest they were not morally or legally entitled, inasmuch as the delay in the final adjudication was caused in great part by their groundless appeal.
5. Returning now to the question of abandonment, it may be said that abandonment is largely a matter of intent, and that intent is to be deduced from the acts of the party. The defendant has not shown any intent to abandon the proceedings, except that it delayed entering the mandate of this court for a period of about nine months after our decision was handed down. It promptly took possession of the strip pending the appeal and built and operated its road thereon. The defendant did not bring the case here, and probably it took the position that it was the duty of the parties who brought it to get it back into the Circuit Court so that they could collect their damages. We do not think that the delay under the circumstances was so unreasonable as to justify us in saying as a matter of law that the defendant here had abandoned the proceedings, especially as the plaintiffs have not shown *626any injury resulting to them from such delay. The plaintiffs prosecuted a groundless appeal and are responsible for much of the delay. But for that appeal, no doubt they would have had their damages long ago.-
The judgment is affirmed.
Affirmed.' Rehearing Denied.
Burnett, Harris and Johns, JJ., concur.