(dissenting).
-.'The. legal question presented by this appeal is not one of fii;st impression in this Court. The rule that should be fol- - lowed applicable to the facts was decided • by the Circuit Court of Appeals of the Ninth Circuit in 1911, in Weiser Valley Land & Water Co. v. Ryan, 190 F. 417; by the Supreme Court of the United States, in 1923, in Brown v. U. S., 263 U.S. 78, 44 S.Ct. 92, 69 L.Ed. 171, adhered to and followed in Village of Lapwai v. Alligier, 69 Idaho 397, 207 P.2d 1025. Some other authorities reaching the same conclusion are Territory of Hawaii v. Honolulu Plantation, 34 Haw. 859; Potter v. U. S., 91 F.Supp. 580, 117 Ct.Cl. 425; Solari v. U.S., 91 F.Supp. 765, 117 Ct.Cl. 428. For collection of cases, see 29 C.J.S., Eminent Domain, § 176, p. 1053.
Two of the Justices now concurring in the majority view, concurred in the decision written by Justice Givens in the Lapwai case, supra.
In all of the decisions above cited, it was held that interest on the amount of the award in a condemnation action is allowable from the date of the issuance of the summons to the date of the judgment.
This seems to me to be a just rule. When the summons is issued, the landowner’s property is, if the property is eventually condemned, taken from him as of the date of the issuance of the summons and damages sustained accrue as of that date. Such landowner is not entitled to recover increase in value subsequent to the issuance of the. summons, if any, nor can he make improvements *497on the property for which he may be allowed any compensation.
If the Legislature desired to change the rule of damages and the date of the accruing of interest to be allowed on a determination of the amount of the award, it has had many opportunities so to do since the first decision allowing interest was announced.
The fact that a considerable time elapsed before the damages sustained were determined is of no importance. At the time this condemnation suit was instituted and the necessity for the taking determined, appellant could have had commissioners appointed, damages awarded and the amount determined paid to the condemnee, or deposited with the Clerk of the Court and could then have taken immediate possession of the land. This the School District failed to do. The largeness of the amount of the interest which accrued during'the litigation is of no materiality. For the same period of time respondent here has been deprived of the full enjoyment of the use of the land to which it was entitled.
After the decree of necessity was entered in the District Court, it became apparent that the School District was not using the land for the purposes for which the condemnation suit was instituted. Respondent endeavored then to have returned to it the land sought to be condemned which the School District successfully resisted. See Independent School District v. C. B. Lauch Construction Co., 74 Idaho 502, 264 P.2d 687. The School District could have at that time, or any time thereafter, and even subsequent to the awarding of damages by the commissioners, abandoned the proceeding and dismissed the action simply by paying the accrued costs. Chicago, M. & S. P. Ry. v. Trueman, 18 Idaho 687, 112 P. 210.
The plain fact is, the necessity for the taking never existed. The School District owned 88.36 acres of land adjoining and adjacent to the land sought to be taken in this proceeding. See dissenting opinion in Independent School District v. C. B. Lauch Construction Co., 74 Idaho 502, at page 507, 264 P.2d 687, at page 690.
As the School District insisted on going ahead and acquiring the land I can see no reason why it should not be required to pay for it under the rules which existed when the condemnation suit was instituted.
Justice ANDERSON, prior to his death, wrote an opinion expressing similar views as are contained in this dissent. The judgment should be affirmed.