By the Court.
Ripley, Cii. J.The motion for leave to file the supplemental answer was rightly denied.
By sec. 3 of the defendant’s charter, (Laws of 1857, Extra Session, p. 3,) it may enter upon lands for the purpose of making surveys, and for the right of way, and may appropriate to its sole use and •control for its purposes as a railroad, land not exceeding two hundred feet in width throughout its line, and enter upon, and take possession of and use any lands *443beyond that width for depot, stations, station grounds and houses, and various other purposes specified and necessarily incident to the complete construction, operation and preservation of the road; and lands belonging to individuals may be taken and appropriated for the purposes aforesaid, and -shall be valued and paid for as thereinafter provided.
At this point, and in the outset, and on the most cursory examination of this section, it is obvious that, whatever be the precise meaning of the words, “ and for the right of way,” it is not the right to enter on any lands whatever therefor, and to make surveys, which is to be valued and paid for; but the land of individuals or corporations, which, by the succeeding clauses, is to be taken and appropriated to the defendant’s use, to the width of two hundred feet throughout its line, and in some localities to a greater width.
By sec. 13 it is provided that, whenever the line of the road * * * * * shall be located and its route determined, it may apply for the appointment of commissioners “ to appraise and award the value of all lands belonging to any private person on its line, which it shall have entered upon, possessed, occupied or used, or which it may thereafter enter upon, take, possess, occupy or use for any of the purposes for which, by this act, the said company is authorized to enter upon, take, possess, occupy or use lands.”
No particular land need be designated in the application, nor need the corporation have determined what particular land it will appropriate, either within the two hundred foet or beyond it. All that is required, is, that it shall have located its line and determined its route. Wilkin vs. First Div. St. Paul & P. R. R. Co., 16 Minn. 271.
The commissioners are to have cognizance of all cases arising on the line of the road, or on so much thereof, as shall be designated, and in each case shall examine the premises sepa*444rately, and shall separately make an appraisement and award of the value thereof at the time when it was so entered upon and taken. On award made and no appeal taken, or on final judgment rendered on appeal, and not before, it is the duty of the company to pay to the land owner the amount so awarded or adjudged; and on payment or tender an absolute estate in fee simple in such lands shall become vested in the company, and the said company shall have full power and authority, after entering upon and taking any such lands, to have, hold, possess, occupy, use and enjoy the same for any of the lawful purposes of said company, from the time of such entry and taking until the proceedings contemplated by the act shall have been finally determined, and until the said company shall have refused, after demand made, to pay the value of said land, so ascertained as aforesaid; and shall not, during such time nor until such refusal, be disturbed in such possession or occupancy, use or enjoyment, by any proceedings either inlaw or equity.
The value of the land is to be appraised at the time it was entered upon and taken, and the first question to be considered, is, as to what this means. The supplemental answer alleges that the commissioners have awarded the value of the land as it was November 1, 1866, with interest since, to the date of the award. On said 1st November, it alleges that it was entered upon for railroad purposes. This, in strictness of pleading, must be taken to be an allegation, that it was then first entered on for such purposes. Is this synonymous with the entry and taking, at which the value is to be appraised 1 Clearly it cannot be. An entry for survey and location of the line would assuredly be an entry for railroad purposes, yet, as we have seen, such an entry would not be a taking of land to be valued and paid for.
This consideration, of itself, disposes of the case; for an *445award of tbe value of the land at a time when it had not been taken as it would be unauthorized, would be wholly irrelevant.
Nor, on this construction of the supplemental answer, would it be necessary for us to determine when the land is to be deemed to be entered wpon and taken. It is enough that a time subsequent to an entry thereon for survey and location is plainly intended by the act.
It may be said, however, that taking the answer and supplemental answer together, it is fairly to be intended, that the entry upon the strip of land one hundred and thirty-nine feet wide, described in the 'complaint and answer, for railroad purposes, and which is the same entry referred to in the supplemental answer, is a different and subsequent entry from any entry that it would be requisite to make on the northerly part of plaintiff’s land for the survey, location and marking of the line of the road on the ground described in the answer.
If this construction be admitted, such entry for railroad purposes must be deemed to have been for the purpose of further prosecuting the contemplated enterprise of constructing and operating a railroad upon the line already marked out, —and the question recurs, whether an allegation of an entry on said strip for such purposes be tantamount to an allegagation, that said strip was entered upon and taken. In Carli vs. Stillwater & St. Paul R. R. Co., 16 Minn. 260, it is held that the land is not taken till award made. But that case arose under the general railroad act, by which the commissioners are to examine the lands that will be taken, and shall appraise to the owner of the land proposed to be taken, the damages arising from such taking. Gen. Stat. ch. 34, sec. 19. Under this charter they are to appraise the value of land, which the company shall have entered upon, possessed, occupied, or used, or which it may thereafter enter upon, take, possess, occupy or use; and shall award the value of the land so entered upon, *446taken, possessed, occupied or used, at tbe time when it was so entered upon and taken, and on appeal, tbe court shall assess the value of the lands so entered upon, taken, possessed, occupied and used, at the time when the same was entered upon and taken. It is herein plainly implied, that the taking may be prior to the award, for it is evident, for instance, that, in the clause specifying the object of the appointment of the commissioners, the words, “ entered upon, possessed, occupied or used,” and “ may thereafter enter upon, take, possess, occupy or use,” are employed to designate the same class of acts, viz.: acts which will amount to an appropriation to the use of the company of the private property in question, and in consequence of which appropriation it is to be paid for; — and any or all of such acts may have taken place prior to the award.
Further, when they are directed to appraise the value of land so entered upon, taken, possessed, occupied or used, at the time it was entered upon and taken, we think it evident that “ entered upon and taken,” referring, as it does directly, to “ entered upon, taken, possessed, occupied or used,” means just that; that is to say, to constitute an entry and taking, which will amount to such appropriation, the land must be entered on for the purpose of construction of a railroad thereon, by an entry which will involve and require the taking and keeping by the company of the possession and occupation thereof; or if, in any case, not of the permanent, actual possession, yet of the use therof to the exclusion of the owner. An instance of the latter might be a gravel bank, of which the company might not require to be in the actual, constant possession and occupancy, yet might require the use of the whole, to be removed as wanted, in which case, if it were measured and staked out by the company, the entry thereon therefor might well be held to be, an entry and taking under the charter provision in question.
*447So, a strip of land, required for a road-bed, might well be deemed to be taken, when it was staked out or cross-sectioned. Entering thereon for such a purpose would involve, in carrying out the work, an exclusive possession, and might well be deemed an appropriation thereof to the sole use of the company.
And as any succeeding step in the prosecution of the enterprise, subsequent to the location and to be taken on the land, might, and perhaps we may say would, naturally be an entry for purposes and uses of this exclusive character, amounting to an actual beginning of the work of construction, and an assertion of ownership, (Sedgwick Const. Law, p. 526,) we may concede, with some straining, it must be confessed, of language and of the rules of construction, that the-words, “ entered upon for railroad purposes,” in the supplemental answer may be held equivalent to “ entered upon and taken,” as used in the charter, and that the commissioners, in valuing the land as of November 1st, 1866, would be acting in pursuance of the authority given them by it.
Supposing, however, that this is so, it is still evident that, if the provisions of the charter, that the company shall have full power and authority, after such entry and taking, to retain possession till the final determination of the proceedings, and until, after demand made, it shall have refused to pay the válue of the land so ascertained, be legal so that its entry aforesaid and possession since have been rightful, it is utterly immaterial whether any tender or award has been made, or any commissioners appointed to make any award.
If such entry and possession were lawful in the outset, then, in as much as the institution of proceedings for the appointment of commissioners is left to the company, the fact that none have been appointed renders such possession no less lawful in 1869, than it was in 1866.
*448Is not such lawful possession since November 1, 1866, a complete defence to this action, which is in the nature of an action of trespass 1 If it be, is not such defence made out by the allegations in the original answer that the defendant entered on said strip for railroad purposes, as by law it was authorized to do, and necessarily did the acts complained of in fitting it to be used for such purposes, and in constructing and operating their road thereon 1 If so, are not the facts alleged in the supplemental answer entirely immaterial under these pleadings ? It would seem so, certainly.
But it has been heretofore decided by this court, that, these provisions of defendant’s charter to the contrary notwithstanding, it had no right, without making or securing compensation therefor, to take and use private property in this way. Gray vs. First Div. St. Paul & P. R. R. Co., 13 Minn. 315. That is to say, the said provisions of the defendant’s charter, in so far as they purport to authorize such use, are unconstitutional and void.
The acts of defendant done on plaintiff’s land since November 1st, 1866, being without authority of law, have therefore been a continuing trespass. So considered, it is obvious that this award and tender would be no defence to this action, brought to recover damages therefor. The defendant’s position in this respect is, that the award covers all the items of damage that could be claimed in an action of trespass, 3fid also all the damage sustained by the entire farm or tract out of which the land is taken, and also the value of the land taken.
But this is certainly not true, if the charter provides for an appraisement of the value of the land taken, and for nothing more, according to its literal meaning. (Sec 13.) The value of the strip taken, by itself, is of course no measure, in the nature of things, of the injury which plaintiff may have *449sustained, in respect of the property of which it formed an integral part, by reason of such entry and use. Winona & St. Peter R. R. vs. Denman, 10 Minn. 267. Moreover, it is an obvious deduction from the doctrine of that case, that nothing short of compensation will satisfy the requirements of the constitution of the United States, that private property shall not be taken for public use without just compensation, and that the mere value of the strip taken cannot be that compensation, that this clause of the charter, if it means that defendant may acquire the land by paying its value and nothing more, is altogether illegal, and an award under it could be no defence. 1 Redf. Railways, ch. XI, sec. 2, p. 64.
But it may be said, that it will not do to overlook that wider meaning of the word “ value,” which may be contended for. If, instead of its literal signification, it should be held rather to mean the value of the strip taken to the owner, that is, to any person owning the same under the same circumstances as the present owner, it is obvious that other elements than its value, by itself or by the acre, would enter into the appraisal, going, with such value, to make up that compensation, to which the owner is entitled. Its value to him might, for instance, consist in part in connecting the residue of the tract, out of which it is taken, and by reason of which taking the tract becomes no longer one, but two separate tracts, and this might be an element of value, contemplated by the charter.
If this be the correct construction of the word, an appraisal of the value, so understood, of the land on November 1,1866, might, if then paid or secured, hare amounted to compensation, in the constitutional sense, for the taking at that date. But how can an award thereof, made in 1870, be, in any sense, a defence to this action, which is brought to recover damages for the unauthorized use of plaintiff’s property since November 1, 1866?
*450But it may be said that the commissioners have awarded interest on the value so estimated, and that this covers such damages. But the charter makes no provision for their including interest in their award. An estate in fee in the land taken is to vest in the company upon payment or tender of the value of the land taken.
The commissioners have apparently, without authority, un* dertaken to award such interest as compensation for an unauthorized continuing trespass on plaintiff's land since November 1st, 1866. The sum may be sufficient, but they have no more right to fix its amount, than defendant itself.
Whatever view, therefore, be taken of the rights and liabilities of defendant, the facts pleaded in the supplemental answer are wholly irrelevant to the issue.
These observations apply to the injunction prayed for. It‘ defendant may lawfully retain possession till the final conclusion of these proceedings, and its refusal to pay, on demand what is awarded, or, if an appeal be taken, what may be finally assessed on appeal, no injunction can issue, whether an award has been made or not. If, on the other hand, the provisions of its charter, purporting to give it that right, are ineffectual to that end, and it has no right to take and use plaintiff’s laird until it has made or secured just compensation therefor, it is evident that the mere fact, that an award has been made and that defendant is ready to pay the sum awarded, is no more material, to prevent an injunction, than the fact, that commissioners had been appointed to make one, which, and their speedy procedure in the business of their appointment, appear by the original answer. For, if the value of the land, appraised by the commissioners or assessed by a jury, be compénsation for the private property so taken, so that, upon payment, the land might become defendant’s property, and i ts possession consequently lawful, it can in no event become so *451by a tender of tbe sum awarded by tbe commissioners before tbe time for appeal expired. Plaintiff could not, in any conceivable case, be divested of bis property by a tender of tbat sum sooner made; and it appears tbat tbe award Was made May 3d, and tbe motion for leave to file tbis supplemental answer May 9tb, 1870. On tbe other band, if tbe value of tbe land as appraised is not sucb compensation, an award and tender thereof, could never give defendant any right in tbe premises, whether an appeal bad been taken and determined or not.
Order appealed from affirmed.