The opinion of the court was delivered by
Gummere, J.This appeal is taken from an order of the chancellor providing the terms upon which, and the manner in which, the respondent shall construct its railroad across the car yard of the appellants, and directing that a preliminary injunction issue enjoining the appellants from interfering with the respondent in the construction of its railroad through said car yard in the manner designated in the order.
The facts upon which the order appealed from was made, briefly stated, are these-: The respondent instituted proceedings to con- • demn a right of way for its railroad across the car yard of the appellants. Those proceedings resulted in the making of an award by commissioners of $182,596 to the appellants as the compensation to which they were entitled for the taking of their land. There was an appeal taken from this award by the respondent ■ to the circuit court, and at the trial it substituted a new method of •crossing the appellants’ yard for that which had been considered by the commissioners. The jury, upon the trial of the appeal, by their verdict, awarded to the appellants the sum of $95,000 ■ as the compensation to which they were entitled for the taking •of their land by the substituted method of crossing. The *192amount of this verdict was tendered to the appellants, and, upon-their refusal to accept it, the respondent paid it into court, and then filed its bill in chancery setting out these facts, and stating, that it was nevertheless being hindered and prevented by the appellants in the construction of that portion of its road, and praying the court to direct the manner in which, and the terms upon which, it should construct its railroad across the appellants’' car yard, and also to restrain the appellants, by injunction, from, interfering with it in the construction of its railroad in the manner and upon the terms which the chancellor should direct.
An order to show cause why an injunction should not issue in accordance with the prayer of the bill was thereupon made by the chancellor. Before the return of the order to show cause-the appellants filed their answer to the bill of complaint, having previously sued out a writ of error to the supreme court to review certain errors alleged to have been committed by the circuit judge■ upon the trial of the appeal from the award of commissioners. The supreme court, after considering the alleged errors, set aside-the verdict which had been rendered, and directed a new trial of the appeal; whereupon the appellants filed a supplemental answer, alleging the annulling of the verdict as an additional1 reason why the respondent was not entitled to the relief which it sought.
In this situation of affairs the chancellor, considering that the • tendering of the verdict by the respondent to the appellants, and the subsequent payment thereof into court, was the making of that just compensation which the constitution requires as a prerequisite to the taking of private property for public use, notwithstanding the fact that such verdict had been set aside and annulled, and that, consequently, the respondent was entitled 1o have the order to show cause made absolute, made the order-which is now brought up for review.
The ground upon which the chancellor bases his order, namely,. that the payment into court by the respondent of the amount of this verdict, after tender and refusal by the appellants, vested in the respondent the right to enter upon and take possession of the land of the appellants, and that such right remained immu— *193table by the subsequent reversal of the verdict, is not tenable. The effect of the judgment of the supreme court, in vacating the judgment of the circuit court and annulling the verdict upon which it rested, was to place the parties in exactly the same condition in which they were before the trial of the appeal from the award of commissioners was begun. Keicher v. Turnpike Company, 33 Ind. 334; Dater v. Troy Turnpike Co., 2 Hill 629. After the verdict was annulled it could no longer be considered as a criterion of the value of the land taken ; much less could it be regarded as the just compensation required by the constitution, for the appellants no longer had any right to appropriate to their use the amount thereof which had been deposited in court; they were then only entitled to such sum as another jury should award them as compensation, upon a new trial of the appeal.
The command of the constitution is that compensation shall be made to the owners — that is, that the money shall become theirs absolutely, and that they shall have the same dominion over it that they had over the land before it was taken, and nothing short of this will satisfy the constitutional requirement. Redman v. Philadelphia &c. Railroad Co., 6 Stew. Eq. 169.
In this case no compensation, within the meaning of the constitutional provision, has yet been made by the respondent to the appellants for the land proposed to be taken, and, for this-reason, the order appealed from should be reversed.
But even if a different conclusion had been reached upon the effect which the judgment of the supreme court, setting aside this verdict, has upon the rights of these parties, the result would: be the same, so far as the determination of this appeal is concerned, for at best the right of the respondent to take possession of the land condemned, under the condition of affairs which exists in this case, must be admitted to be an unsettled question in this state, and nothing is more firmly settled in this court; than that a preliminary injunction will not issue where the right which the complainant seeks to have protected is in doubt.. Citizens’ Coach Co. v. Camden Horse Railroad Co., 2 Stew. Eq. 304; Haggerty v. Lee, 18 Stew. Eq. 256.
*194Moreover, the order appealed from, although it purports to he a mere preliminary order, made in the inception of the case .and upon ex parte affidavits, is, in reality, nothing more nor less than a final decree, for it disposes, absolutely and finally, of ■every matter which is involved in this suit. An order or decree ■of this character can only be made upon final hearing, had upon pleadings and proofs taken upon due notice and in accordance with the rules and practice of the court.
The order appealed from should be reversed.
For reversal — The Chief-Justice,. Gummeee, Magie, .Reed, Van Syckel, Sims — 6.
For affirmance — Dixon, Lippincott, Bogert, Brown — 4.