*560ON REHEARING.
BURGESS, J.Defendant presents motion for rehearing in this case, assigning several grounds therefor. Among others, it is said counsel for appellant, submitted the proposition that, either in a condemnation case or in a suit by the owner for the value of his land taken for railroad purposes, the value of the land can be paid for eithér in money or in benefits to the remainder of the land not taken, but that this court-overlooked the authorities presented on that proposition, and holds that under the Constitution the land can only be paid for in money. It requires but an impartial glance at the opinion to show that we did not overlook the authorities presented.
Nor does the opinion ánnounce that, as a rule, the-value of lands taken or condemned for railroad purposes may not in such a proceeding, or in an action by the owner of the land for the value of the land taken, and damages to the remainder of the tract, be ascertained and the benefits to the land including that taken, can not be deducted from the damages allowed, but especially recognized it, and differentiates the case at bar from that line of cases, in that, in this case the land was appropriated by defendant under an agreement in writing with plaintiff by the terms of which he was to be “allowed and paid the value of the bridge abutments on his said land as well as for the land taken,’5, which means paid in money and nothing else, and if it was otherwise intended by the parties to the contract, that is,' that the benefits to the tract by reason of the construction of the road was to be deducted from the value of the land actually taken, and from the damages to the remainder of the tract, whether such damages were claimed or not, it is defendant’s misfortune that it is not so specified in the contract, in the absence of which it must be presumed that no such agreement was made. When defendant appropriated the land to railroad purposes by and with the written consent of plaintiff, the law implied a promise by it that it would pay *561plaintiff therefor its reasonable value, and, while plaintiff in this action not only sued for the value of the land taken, but also for damages by reason thereof to-the entire tract, he abandoned the claim for damages >at the trial, as he had the right to do, and offered no evidence on that feature of the case, and we are at a loss to know how benefits could be deducted from damages not claimed. Suppose, instead of leaving the question as to the value of the land taken to be thereafter agreed upon between the parties, they had agreed upon the price to be paid for it, and in default of its payment plaintiff had sued defendant for the purchase price, would it be contended that defendant in such suit could have had deducted any benefits that the entire tract may have sustained by reason of the construction of the road from the amount of the purchase money? We apprehend not. There is no difference in principle between the supposed case, and the one at bar. The one is an implied promise to pay the reasonable value of the land taken under contract, while the other is an express promise to do so; and in either case to allow benefits to the land not taken to be deducted from the value of the land taken, when no damages are claimed by reason of the construction of the road, would in effect be paying for the land taken in benefits, while under the contract it is to be paid for in money. To permit the land taken to be paid for in benefits, would be in the face of the contract, and in violation of section 21, article 2, of the Constitution.
Of all the decisions of this court cited by defendant as sustaining its contention, not one of them is bottomed upon a contract for the talcing and appropriation of land for railroad or other public purposes, as is this case, and therefore they do not cover the question under consideration.
It is said by counsel for defendant that the contract is no stronger than the Constitution, which cán not be held.to require the payment in money for-land taken for public use. Our answer to this contention is, *562that the law of the land guarantees every citizen the right to contract, and that is just what plaintiff and defendant did in this case, and nothing more.
It is true that it was incorrectly stated in the opinion that the defendant was to institute condemnation proceedings for the purpose of condemning the land not later than April 15, 1892, instead of not before that time, and in that respect the opinion will be modified.
The contract does not, however, provide, as asserted by defendant, that the condemnation proceedings should not be begun until after the 15th day of April, 1892, but does provide that such condemnation proceedings should not be begun until after.that date %oithout further effort to agree with the plaintiff as to the value of his land and bridge abutments. It was contemplated by the contract that the condemnation proceedings should be begun immediately after April 15,1892, in any event; and further, that they should be begun forthwith after the making of the contract provided the plaintiff should have returned to Jackson county, Missouri, so as to be able to give the matter his personal attention. The defendant could have instituted these condemnation proceedings as provided by the contract at any time after April 15, 1892, and without even making any further effort to agree with the plaintiff as to compensation, but it steadily declined and refused to do so until the plaintiff was finally compelled, after waiting more than six years, to file this suit on September 13, 1898.
The motion for rehearing is overruled.
All of this Division concur.