Upon a rehearing in this case we have concluded that the judgment of the trial court should have been affirmed.
The theory of plaintiff’s suit is an action in equity to quiet title (Comp. St. 1929, sec. 76-401) to an easement in lands for an irrigation ditch over defendants’ farm by reason of a prescriptive right (Comp. St. 1929, sec. 20-202).
Defendants by answer make general denial, and admit that plaintiff constructed an irrig-ation ditch over defendants’ lands in 1930, but allege that the then owner (now deceased) was in California at the time and without knowledge of its construction; that upon her return negotiations were had with plaintiff's officers as to damages suffered, but no agreement was reached and nothing has been paid therefor. Defendants pray that as a condition to granting plaintiff equitable relief just compensation be awarded them for the land taken and damages resulting.
A search of the record discloses no evidence supporting the plaintiff’s theory of prescriptive title as claimed in the petition. The evidence is that plaintiff constructed the ditch across defendants’ lands by permission of the tenant who agreed to give plaintiff the right of way, but that the owner was in California at the time and without knowledge of its construction; that upon her return plaintiff’s officers negotiated with her for settlement, but none was reached and the damages suffered were never paid by the plaintiff.
It must be conceded that a tenant would ordinarily have no legal right to consent to the appropriation either with or without payment of damages. See 29 C. J. S. 1123, sec. 206; 20 C. J. 867; Propst v. Cass County, 51 Neb. 736, 71 N. W. 748. There is no evidence that the tenant had such authority. Possession therefore was taken under a void agreement and not under any claim of continuous possession under claim of ownership for the statutory period of ten years.
The decree of the trial court quiets the title to the easement in plaintiff, not on the basis of a prescriptive right as claimed in the petition,' but on the theory of an equitable *437enforcement of the statutory condemnation law which had not been complied with by the plaintiff in its construction of the ditch upon and over defendants’ lands, as claimed by defendants in their answer.
No appeal has been taken by either plaintiff or defendants from this part of the decree. To that extent it becomes the law of the case and is res adjudicada as to the same issues raised by the answer. See Shepard v. City of Friend, 141 Neb. 866, 5 N. W. (2d) 108; 34 C. J. 742. The appeal comes to this court solely on the question of damages awarded as prayed in defendants’ answer.
“Eminent domain * * * is the right of the nation or the state, or of those to whom the power has .been lawfully delegated, to condemn private property for public use, and to appropriate the ownership and possession of such property for such use upon paying the owner a due compensation to be ascertained according to law.” 29 C. J. S. 776, sec. 1.
Our applicable condemnation law (Comp. St. 1929, ch. 46, art. 6, and ch. 74, art. 3) and constitutional provision (Const, art. I, sec. 21) against taking and damaging private property for public use “without just compensation therefor” forcibly imply that all damages must be paid; in the one case, to the county judge before the right to entry arises, and in the other it is self-executing. An answer praying for payment of just compensation as a condition of relief quieting title in plaintiff to lands taken and damaged for public use under the power of eminent domain, not exercised as the statute requires, is germane to the original action as it would be in an original proceeding for statutory condemnation.
In Kime v. Cass County, 71 Neb. 677, 99 N. W. 546, affirmed in 71 Neb. 680, 101 N. W. 2, involving comparable facts and circumstances, this court said: “No damages were appraised, or provision made for their payment, before or at the time of the attempted establishment of the alleged public road in controversy. Under the Constitution * * * such omission defeated the alleged right to appropriate the land to a public use. * * * If the legislature could *438rightly require of the landowner one affirmative and initiatory act, as a condition precedent to obtaining damages, they might require of him any other, or a series of acts which might be difficult or onerous or, in some circumstances, impossible of performance, and so the constitutional guaranty might thus be seriously impaired or wholly frittered away. We are of opinion that the spirit, if not the letter, of the Constitution requires that the public seeking to appropriate private property to its use should, unless damages have been waived by some affirmative and unequivocal act, take steps of its own motion to ascertain their amount and secure their payment, and that mere passive acquiescence by an individual in the appropriation of property, unaccompanied by any conduct indicative of affirmative assent thereto, should not, unless continued for the statutory period of limitations, be regarded as a waiver of his rights. The second matter determined by the opinion, and about which the record leaves no room for doubt, is that the public have not occupied the lands in suit, continuously, for so long a time as is required by the statute to acquire, by that means, a prescriptive title to the alleged easement.” See, also, Johnson v. Peterson, 85 Neb. 83, 122 N. W. 683; Weinel v. Box Butte County, 108 Neb. 293, 187 N. W. 939; Lee v. Eyerly, 109 Neb. 539, 191 N. W. 699,
Where a party having- a lawful right to enter and take lands by eminent domain for public use by paying just compensation therefor does not enter in conformity to law, but the owner waives this feature and treats it as if the law had been followed, with only the question of compensation to be settled, then the law of compensation under eminent domain applies. It is just as if condemnation proceedings were begun and not yet completed. In such cases the action for just compensation is not barred except by adverse possession of the land taken for ten years, the requisite period to establish a title by prescription. Schilling v. Carl Township, 60 N. Dak. 480, 235 N. W. 126; Oklahoma City v. Wells, 185 Okla. 369, 91 Pac. (2d) 1077, 123 A. L. R. 662; 2 Lewis, Eminent Domain (3d ed.) sec. 967. Compelling *439reasons for these rules of law are found in these authorities and in Aylmore v. City of Seattle, 100 Wash. 515, 171 Pac. 659, L. R. A. 1918E 127. They are controlling in the case at bar, and our former opinion, Dawson County Irrigation Co. v. Stuart, ante, p. 428, 6 N. W. (2d) 602, is hereby vacated and set aside, and the judgment of the trial court awarding defendants a judgment for $785 against plaintiff for land taken, and damaged is hereby
Affirmed.