ON MOTION EOR REHEARING.
Macfarlane, J.I. On motion for rehearing, filed by defendants, it is insisted that when the railroad •company paid into court the amount of the damage awarded by the commissioners, and took possession of the land, the appropriation thereof was complete, the easement, as demanded in the petition, became vested absolutely in the corporation, and it had no right to require defendants to accept a release of a portion of such easement in lieu of money compensation to which they were entitled under the constitution. It is insisted further that, after a complete appropriation, “any subsequent proceeding should only affect the amount of compensation to be allowed” the landowner, and the condemning company has no power to change the easement previously acquired.
"We do not think that defendants observe the distinction between the appropriation of the land itself, and the plans and methods that maybe adopted for the construction, maintenance and operation of the road thereon. We think it true, as claimed, that the appropriation of the land is complete when the amount of damage awarded by the commissioners is paid and possession is taken. This is necessarily implied from the provision of section 2739, that “any subsequent proceedings shall only affect the amount of compensation tobe allowed.” Such has also been the construction placed upon the statute by this court. Gray v. Railroad, *19681 Mo. 126; Railroad v. Carter, 85 Mo. 448; Railroad v. Town Site Co. 103 Mo. 451; Railroad v. Fowler, 113 Mo. 458.
The damages to be assessed, and which are to be determined in subsequent proceedings, as stated by the statute, section 2734, “are in consequence oí the establishment, erection and maintenance” of the railroad. It is manifest that the plans upon which the road may be constructed may greatly affect the damages to the land remaining unappropriated, and the uses to which it may be applied, without affecting, in the least, the appropriation. It could hardly be intended that, because commissioners assessed damages on the assumption that the road would be built on the natural grade of the land, on a subsequent trial the jury could not consider, on its estimate of damages, the fact that the corporation had changed its plans, and built its road on a high embankment or in a deep cut; so commissioners may assess damages on the theory that a farm crossing would be under the railroad, when it was afterwards, in fact, constructed across the track, or vice versa; there can be no doubt that the jury in such case should be allowed to assess the damages according to the plans upon which the road was actually built, though the use of the easement may thereby have been more or less limited.
If the assessment of damages by the commissioners concludes the proceedings, the corporation would have the right to use the land appropriated according to such plans as it may see fit to adopt (Moss v. Railroad, 85 Mo. 89), unless a particular manner of construction had been adopted upon which the commissioners made their estimate, in which case it seems but equitable, that if the original plans were changed, the landowner should be allowed additional compensation, if the change increased his damages.
*197Upon an assessment by a jury, in case the road bas already been constructed, it seems too plain to require more than a statement of the proposition, that the damage should be ascertained in view of the condition in which the unappropriated land is left by the use actually made of the easement, This in no sense constitutes a payment of damages in privileges, but is simply a reduction, or increase, as the case may be, of the damages on account of the manner of constructing the road.
Now, we are unable to note a distinction between the supposed cases and the one under consideration. Neither is inconsistent with the previous complete appropriation of the land for the purpose of erecting, maintaining and operating a railroad thereon. Each affects only the damages to be allowed. No good reason can be seen why the condemning company should not have the right to announce, upon the trial, and have made a matter of record, if not done in its petition, the manner in which the right of way should be used, otherwise the jury would have the right to make the award on the basis of the most injurious use to which the easement could be lawfully applied in the construction and operation of the road.
The statutes of New Jersey do not differ materially from those in this state in respect to the proceedings to condemn land for railroad purposes. In a recent ease the court of appeals expressed itself, on the question under consideration as follows: “It is to be regretted, I think, that the law does not require the party condemning lands for public use to set out in the proceedings the mode in which the land condemned is to be used, so that' it will become matter of record. The condemning party may designate the mode of use in its petition for the appointment of commissioners, and if it does the award should include damages predicated upon the use of the land in the designated mode. If *198the mode is'not designated in the petition or when called on before the commissioners or jury, then the-award should include damages 'predicated upon the use’ of the land in any lawful mode; for the purposes of the party. National Docks & N. J. J. C. R’y Co., v. State, 53 N. J. L. 217, 21 Atl. Rep. 570. And if,, when called upon to declare before the commissioners or jury the mo.de in which the land is to be used, the-party announces its plan, the award may be made on tire basis of the most injurious use within such plan,, and equity 'will restrain from a more injurious use. Carpenter v. Railroad, 24 N. J. Eq. 249. When a, plan for the use of the condemned land is announced, upon the trial of an appeal, the trial judge may properly require it to be entered upon the record by amendment, of the issue or otherwise.” Packard v. Railroad, 54 N. J. L. 563. See, also, Railroad v. Railroad, 112 Ill. 603.
Iii a recent case decided- by the supreme court of Illinois the railroad company stipulated in open court, to construct an underground crossing and to -fence its. road within á shorter time than the statute Required. The landowner insisted that the corporation had no-right to reduce the damage by such a stipulation. The 'supreme' court says: “We think it is competent, upon the trial'of a condemnation case,'for the party seeking-condemnation to bind itself, by an offer in open court, to the' performance of duties like those here offered to-be performed, and to thereby, and to the extent that such ■ performance will prevent 'damages that would otherwise Occur, abridge the claim by the landowner for damages. Railroad v. Railroad, 105 Ill. 383; Hayes v. Railroad, 54 Ill. 373. The judgment in such casé should vest the rights obtained by’the condemnation, subject to the performance of-such duties, so as to insure it, and that was sufficiently dóne'here.” Railroad v. Fletcher, 128 Ill. 626.
*199In Pennsylvania a stipulation filed by a gas company in a proceeding to condemn a right to lay pipes through the land of another, releasing to the landowner the right to mine coal beneath the surface, was upheld, though it was objected that the release should have been offered at the time of filing the bond to secure the landowners damages. McGregor v. Equitable Gas Co., 21 Atl. Rep. 13.
In the McGrew case (104 Mo. 282), relied upon by defendants, the offer, by the corporation, was to grant the landowner the right to locate his engine and machinery on land not involved in the condemnation proceeding at all. It was held, and we think properly, that damages could not be paid in that way. In that case both parties conceded the impracticability of working a mine located on one side of the road by machinery on the other side, by having connections pass over the surface of the track. Both parties introduced evidence, without objection, as to the practicability of underground and overhead connection. The right to the adoption of either of these methods was not denied. It is true, an instruction in that case was approved, which told the jury that the landowner had no right to make or maintain any connecting devices over the track which would in any manner interfere with the operation of the railroad or the safety of the traveling public. This proposition, under the peculiar circumstances in that case, we do not think in conflict with the opinion written by Blaoe, C. J., in this case, but it is, we think, in entire harmony with it, as in that case no offer to reserve any such rights was made, nor were any such rights contemplated under any proposed plans of constructing the road.
The statutes of various states differ widely in respect to the proceedings in exercising the right of eminent domain, and the decisions of one state can not *200safely be followed as precedents in another. The statute of our state is so incomplete that much must necessarily be left to be settled on general principles of equity and right. Our statute failing entirely to require the corporation to announce to the commissioners the plans upon which the road would be constructed, it would seem right that it should be permitted to do so upon a subsequent trial before a jury with a view of obtaining a reduction of damages.
Our opinion is, therefore, that the offer made by the railroad company in this case, upon the trial, to so construct its road as to reserve to the landowner two crossings, - was a matter going to the damage to be allowed, though incidentally the reservation may have limited to a certain extent the use of the easement. Such an offer should be treated as in the nature of an amendment to the petition, entitling the defendants to a postponement of the trial if they were taken by surprise.
II. On reconsideration, a majority of the court has reached the conclusion that the evidence of an oral agreement by the Merchants’ Bridge Terminal Railway Company (described in paragraph four of the opinion) to give an easement through its land, for the construction and maintenance of railroad tracks, and switches, for the use and benefit of defendant’s land, should not now have been admitted. The object of the evidence was to show that defendant’s land was permanently provided, by convenient connection with said railroad, with ample railroad privileges and facilities and was not dependent upon plaintiff’s railway for them. It is thought that this evidence, depending as it does on merely possible future uses that may be made of defendant’s land is too remote, uncertain and speculative to be a proper element of damage. The jury should properly take into consideration the situation of *201the property with respect to the location of the Terminal Railway in determining the facilities it would afford, hut not evidence of a contract that facilities would he given in the future which may never be heeded or provided. Motion for rehearing overruled.
Barclay, J., does not sit. The other judges concur. Sherwood, J., specially.