(dissenting).
I find no error in the instructions given by the trial Judge on the question of damages. He did not charge that respondent could recover interest eo nomine but in effect instructed the jury that interest could be assessed as an element of .just compensation under Article 1, Section 17 of the Constitution of this State.
The overwhelming weight of authority is to the effect that when the owner is not paid compensation until after his property is taken, he is entitled to interest, or at least its equivalent in the form of damages, for the delay in making payment. Annotations 96 A. L. R., page 150 and 36 A. L. R. (2d) page 413; Nichols on Eminent Domain, Third Edition, Volume 3, Section 8.63. It will be noted in these anno*8tations that Haig v. Wateree Power Co., 119 S. C. 319, 112 S. E. 55, is cited as being in line with the foregoing. Some of these authorities are referred to in the recent case of South Carolina State Highway Department v. Miller, 237 S. C. 386, 117 S. E. (2d) 561.
On page 428 of the annotation in 36 A. L. R. (2d) it is stated :
“In the great majority of the cases, the rule has been recognized that the interest which may be recovered as part of the damages or compensation to which one whose property has been taken under the power of eminent domain is entitled, is a matter of strict constitutional right. Stated differently, when compensation is not paid coincidentally with the taking, it must include some sum in addition to the bare value of the property on the taking date, for the delay in making payment, so that compensation may be just within the meaning of the constitutional requirement that just compensation be paid.”
In Appleton Water Works Co. v. Railroad Commission, 154 Wis. 121, 142 N. W. 476, 478, 47 L. R. A., N. S., 770, the Court observed: “Just compensation must mean fair and reasonable value at the time the property is taken; just compensation for property presently taken must necessarily mean its present value presently paid; it cannot mean its present value to be paid two years in the future, without interest.”
The United States Supreme Court has consistently allowed interest as a part of damages in condemnation cases. In Seaboard Air Line Railway Co. v. United States, 261 U. S. 299, 43 S. Ct. 354, 356, 67 L. Ed. 664, the Court said:
“The requirement that ‘just compensation’ shall be paid is comprehensive and includes all elements and no specific command to include interest is necessary when interest or its equivalent is a part of such compensation. Where the United States condemns and. takes possession of land before ascertaining or paying compensation, the owner is not limited to the value of the.property at the time of the taking; *9he is entitled to such addition as will produce the full equivalent of that value paid contemporaneously with the taking. Interest at a proper rate is a good measure by which to ascertain the amount so to be added.”
In several cases this Court has permitted the recovery of interest as an element of damages even though interest eo nomine could not have been recovered. Wilson v. Atlantic & C. Railway Co., 16 S. C. 587; Knight v. Sullivan Power Co., 140 S. C. 296, 138 S. E. 818.
The owner’s right to just compensation cannot be made to depend upon statutory authorization. While the Legislature may fix the procedure to be followed in asserting a claim for compensation, it may not impair or deny an essential element thereof. As stated in State v. Stabb, 236 Ind. 319, 79 N. E. (2d) 392, 396, the Constitution “prevents the taking of private property for public use without just compensation. One of the elements of just compensation is the allowance of interest. This being an essential element it cannot be excluded even by legislative enactment.” To the same effect is Chick Springs Water Co. v. State Highway Department, 159 S. C. 481, 157 S. E. 842, 848, where it was said: “In actions against the State for compensation for property taken, the Constitution itself gives consent for the state to be sued, and, where the Constitutional Convention has given such consent, no act of the General Assembly is needed for that purpose, nor is it in the power of that body to deny it,- for ‘a constitutional provision shall never be construed as dependent for its efficacy and operation upon the legislative will.’ ”
It would seem under the foregoing authorities that the fact that the Legislature has not authorized the allowance of interest in highway condemnation cases is not controlling. I think the question before us must be answered under the Constitution. ...
Since the majority of the Court has decided that the judgment should be reversed, I shall not undertake to discuss the other questions raised by the exceptions.