dissenting.
I respectfully dissent. I think the argument and authorities contained in respondents’ reply to the application for writ of error so clearly state my views that it is not amiss to adopt portions of such argument as my dissenting opinion.
For the purpose of this opinion I adopt the following statement:
Petitioner filed its original petition for condemnation on November 14, 1955. This petition described the property to be burdened and described the rights and uses which petitioner would have in the erection and maintenance of its transmission line.
The petition prayed for immediate condemnation of such permanent easement with no limitation as to time with respect to the beginning of the use or the duration thereof.
The commissioners duly made and entered their decision and award.
Thereafter on December 5, 1955 the petitioner in order to enter upon and take possession of the easement condemned in accordance with Article 3268, paid double the amount of the award into the registry of the Court, as shown by the certificate of deposit.
It was also stipulated the date of the taking was December 5, 1955.
Respondents duly filed their objections and perfected their appeal to the County Court at Law.
*508On April 30, 1956, several months after the date of the commissioners’ award and almost five months after the date of the taking of said easement, respondent filed what it called a supplemental petition for the first time asserting that its condemnation did not require interference with respondents’ right to enter the land for the purpose of removing sand and gravel until May 1, 1957, and promising to make any necessary arrangements to permit such operations.
Respondents filed motion to strike such pleadings and special exceptions which were overruled.
The principal value of the land over which the easement was taken was for sand and gravel excavation, such value ranging from $1,572.50 according to respondents’ witness to $1007.50 according to petitioner’s witness', while its value for other purposes ranged from only $784.00 to $487.50.
Counsel for petitioner made an opening statement to the jury to the effect that petitioner would not actually use the easement until May 1, 1957, and that respondents had until that time to remove their sand and gravel and that petitioner would do anything necessary to permit them to remove same. Respondents objected to such statement and remarks, but same was overruled.
During the trial petitioner was permitted to cross-examine defendants’ witness, Bob Dunn, over respondents’ objections, with reference to the possibility or probability of respondents removing1 the sand and gravel prior to May 1, 1957.
Petitioner was permitted, over objections of respondents, to introduce testimony of its witness, P. G. Wallace, with reference to the offered right of respondents to remove said sand and gravel prior to May 1, 1957.
Petitioner was permitted, over respondents’ objections, to introduce testimony of its witness, John R. Hill, Jr., relating to respondents’ right to remove sand and gravel prior to May 1, 1957.
The trial court in its charge to the jury defined the easement taken and added to such definition, over respondents’ objections, the specific instructions that the easement taken did not include the right to interfere with respondents’ right to enter upon such strip of land for the purpose of removing sand and *509gravel until May 1, 1957, and that petitioner would make whatever arrangements that may be necessary to permit such operations and that after such date respondents still had the right to enter upon the land and remove sand and gravel so long as such operations did not interfere with the construction, maintenance and operation of the electric transmission line.
The trial court permitted petitioner’s counsel to argue to the jury, over respondents’ objections, that petitioner was not going to interfere with respondents’ right to remove the sand and gravel before May 1, 1957, and that petitioner would do everything necessary to allow them to remove such gravel.
The jury returned their verdict finding the amount of damages sustained by respondents, and based thereon the court entered judgment condemning said easement and fixing said damages to be awarded to respondents.
The Court of Civil Appeals reversed and remanded the cause sustaining all of respondents’ points on appeal.
It is stipulated that the date of taking was December 5, 1955. The date of taking in this case was fixed, not only by the deposit of damages, but by the express stipulation of the parties. Market values must be determined as of that date.
The Court of Civil Appeals correctly held that the land or interest in land taken by condemnation must be definite and clear and must be paid for at the date of the taking and the damages must be computed as of such date. See Miers v. Housing Authority of City of Dallas, 266 S.W. 2d 487 (Texas Civ. App.) ; Loumparoff v. Housing Authority of City of Dallas, (Texas Civ. App.) 261 S.W. 2d 224.
Article 1, Section 17, of the Constitution of Texas requires payment “when taken,” thus making the date of taking the time when damages must be reckoned.
In Gulf C. & S. F. Ry. Co. v. Brugger, 24 Texas Civ. App. 367, 59 S.W. 556, the Court held it was error to charge the jury in such a way as might lead them to believe they could assess the damages with reference to the values of the land at a date other than the date of taking.
It is clear that the trial court deprived respondents of their legal right to recover their damages as of the date of taking, *510December 5, 1955, by reason of the fact that throughout the trial petitioner was permitted to show and contend that respondents would suffer no damage until May 1, 1957, and under the pleadings allowed, the evidence introduced, the charge of the court, and the arguments of counsel the jury was prevented from answering the special issues submitted to them with reference to the market value of the land immediately before and after the taking of the easement on December 5, 1955.
In one breath the court asked the jury to find the market values immediately before and after the easement was condemned on December 5, 1955, but, in the next, the court tells the jury not to consider the easement to be taken until May 1, 1957, at least as far as the value of the sand and gravel are concerned, and that is the principal value of the land.
The petitioner condemns and takes the easement as of December 5, 1955, but says to respondents that it will not need the easement until a later date and therefore respondents are relegated to their damages as of such later date. This is not the law.
The jury compensation guaranteed by the Constitution for the condemning of property must be measured by the rights taken at the time they are taken, and cannot be minimized or mitigated by the fact that the condemnor will not or probably will not exercise to the full extent the rights so acquired or will not do so until a later date.
Thus, it is established that a condemnor may not condemn and take property on one date and then have the damages fixed at a later date. This is precisely what petitioner did in this case in the trial court. The trial court clearly erred in allowing the pleadings, proof and arguments to the effect that damages should be ascertained at a date other than December 5, 1955, the date of taking, and clearly erred in so charging the jury.
Petitioner apparently argues that since it had not yet begun the construction of its improvements on the land at the time of trial, that market values and damages could be determined at the later date of May 1, 1957. This contention clearly ignores the stipulated fact that the date of taking was December 5, 1955, and is contrary to the law which fixes the date of taking on such date when the required deposit was made.
The Court of Civil Appeals correctly held that the issues of *511market values and damages must be determined as of the date of taking.
The petitioners have not in any way reduced any rights taken by the condemnation and there was no abandonment' of any of the property or easement rights acquired by the condemnor. Therefore the petitioner has failed to bring itself within the rule announced in Thompson v. Janes, 151 Texas 495, 251 S.W. 2d 953.
Petitioner has not abandoned all or any part of the easement condemned. All of the original uses taken by petitioner by its original condemnation remained after the filing of its amendment. None of the burdens of the easement or the uses to be made of the land were abandoned, nor was the area of the burdened land diminished. The amendment only sought to postpone the time when petitioner would begin its construction and use of the easement in its original form.
Thus, this is not a case where a part of the land or a part of an easement has been abandoned, and the cases cited by petitioner wherein the actual taking of the land was abandoned and the condemnation dismissed have no application here.
In every case cited by petitioner the condemning authority decided that it actually did not want to take the land or a particular part of same and sought dismissal of the proceedings as to such land, and the Courts rightfully held that the condemnor could not be forced to take such land.
But there is no such abandonment here or dismissal of any part of the land or easement. Here petitioner only sought to limit the time in the future it would begin to use the full easement rights previously acquired.
Petitioner is not asking the right to give up any part of the easement it acquired — it really is asking for a “delayed condemnation”. It acquired the full and complete easement on December 5, 1955, and then later it does not give up or abandon any of such rights, but merely states and promises it will not use any of such rights until May 1, 1957, in an attempt to make the date of taking as of such latter date.
Petitioner seeks to change well settled law as to measurement of damages from the date of taking to the date of using.
*512In practically every condemnation case, whether it be for an easement or otherwise, the actual improvements are not constructed by the condemnor until sometime in the future, that is, some time after the date of taking. This interval between the time of the date of taking and the date when the improvements are actually constructed should never be considered as changing the well settled rule that the damages must be ascertained as of the date of taking. Nor should such interval of time vary the rule that damages are to be measured by the purpose to which the property is to be put.
Under our condemnation laws title to the property condemned, whether fee simple, limited or an easement, must be vested in the condemning authority and divested out of the owner; and since this remedy is a harsh one, the law requires full, complete and adequate compensation to be paid as of the time said property is condemned. Public policy demands that such compensation and damages be ascertainable as of a definite time.
If the rule contended for by petitioner were the law, nothing but utter confusion could result, for the parties, the commissioners, and the Courts could never be sure of when the measure of damages or values would be reckoned. There is always some time interval between the beginning of the condemnation proceedings and the actual start of construction or use of the property or easement taken — sometimes perhaps only a few days while in other cases a year or more may - so elapse. This is the very reason for the sound rule that damages must be fixed at a time certain, to wit, at the time of taking, and the time when the construction or use actually begins can have no bearing upon the matter.
Only the condemnor can decide when to begin the proceedings, when to take the easement, when to deposit the payment into Court and when to actually construct the improvements or put the easement to use. The condemnee has no choice or discretion in regard to these matters — his only remedy being that of securing just compensation.
If the condemnor does not require reasonably immediate use of the easement, it should delay the institution of the proceedings, or it may delay the date of taking and forego its right to immediate possession and not make the statutory deposit.
But once the condemning authority has completely exercised *513its right to acquire the title to the easement condemned, it should not be allowed to fix the damages or values at a later date.
It must be remembered the Texas Power & Light Company-completed its taking of this easement on December 5, 1955, and at that time acquired the full and complete right of use, possession and control of the easement, with no reservations or limitations.
The Court of Civil Appeals correctly held that such amendment was improper since it did not seek to reduce any rights taken, abandon any property or rights or to dismiss any such rights.
In Brazos River Conservation & Reclamation District v. Allen ,141 Texas 208, 171 S.W .2d 842, 845, this Court pointed out that while a condemnor has a right to correct its errors, abandon the purpose of taking and do dismiss the proceedings for condemnation so long as it does not prejudice the rights of the landowner, that it may not take any action which does not amount to such an abandonment of dismissal merely for the purpose of reducing the damages to be paid. The Court pointed out that the action of the District in that case (filing a second proceedings on the same land) was not an “undertaking to abandon the purpose of taking the property” and there was no intention to abandon the proceeding within the meaning of the rule first stated.
In Thompson v. Janes, supra, this Court stated that a condemnor who has not taken possession had a right to dismiss the suit “if the project is to be abandoned or the location changed” or it might dismiss as to a portion of the land “when it decides that its purposes may be accomplished with less land than was initially sought.”
Here, however, petitioner did not seek the abandonment or dismissal of any of the land or easement rights within the rule contended for by petitioner. When land is condemned, compensation must be paid for all of the land taken including minerals, gravel, improvements, or any other items that go to make up its value. The landowner is entitled to such damages as may be occasioned by the easement as to all of the land over which it is taken, not just a part. The jury was not given an opportunity to find the value of the land immediately after the condemnation of the easement as burdened by such easement. The testi*514mony conclusively shows that as of December 5, 1955, the date of taking, the gravel could not be removed from under and around the electric transmission line.
The majority opinion fails to recognize that, although a public authority may force a sale of property or an easement for a public purpose, it cannot compel an owner to sell or dispose of a part of such property (gravel in this case) to a third party and then sell the remainder to the condemnor. The petitioner recognized this rule when it filed its original petition for condemnation on November 14, 1955. In that petition it sought immediate condemnation of a permanent easement for an electric transmission line. In the petition the uses by which the land was to be burdened were described. No reservation or recognition of any rights to the condemnee (landowner) inconsistent with petitioner’s easement uses were contained in the pleadings. Yet, without the abandonment of any of the easement uses thus obtained on December 5, 1955, the trial court permitted the petitioner to file supplemental pleadings which in legal effect deprived the landowner of a fair trial and operated to his prejudice. It permitted the condemnor to go to the jury armed with the charge,. of the court and forcefully argue a market value not in keeping with that permitted by State v. Carpenter, 126 Texas 604,89 S.W. 2d 194, 979. I know of no case in this or any other jurisdiction that has gone so far afield as the present case. To allow the petitioner to take the easement on December 5, 1955, and then to mitigate the damages by later offering to allow respondents to remove the gravel prior to May 1, 1957 violates all the rules and principles which have governed condemnation proceedings at least since State v. Carpenter, supra. The trial court, over the objections of the respondents, charged the jury as follows:
“You are further instructed that the easement taken does not include the right to interfere with defendant’s right to enter upon said strip of land or upon any adjoining land for the purpose of removing sand and gravel therefrom, until the 1st day of May, 1957, and that until that date plaintiff will make whatever arrangements are necessary to permit such operations, and, further, that after the 1st day of May, 1957, defendants will still have the right to enter upon said, land and carry on operations for the removal of such sand and gravel, so long as such operations do not interfere with the construction, maintenance and ■ operation of said electric transmission line.” (Emphasis added)
*515This was a charge upon the weight of the evidence. It was harmful to the respondents in that it told, or at least intimated to the jury that respondents would in fact be able to remove the sand and gravel before May 1, 1957, and if not removed before that, but after the construction of the power line, the respondents could still remove the sand and gravel. The charge was a direct comment that the date of taking was May 1, 1957 rather than December 5, 1955. The record conclusively shows that the sand and gravel cannot be removed after the construction of the line. The damages cannot be reduced after the taking by the fact that the condemnor permits the landowner to make some use of the condemned premises after condemnation. See 75 American Law Reports, pp. 857, 861, 863; 29 C.J.S. p. 1015, Sec. 155, 35, Eminent Domain; Little v. Loup River Public Power District, 150 Neb. 864, 36 N.W. 2d 261, 7 A.I.R. 2d 355. What we have is equivalent to an unaccepted promise and no more. The majority leaves the landowner at the mercy and subject to the unilateral control of the petitioner. As was said in Pierce v. Platte Valley Public Power & Irrigation District, 143 Neb. 898, 11 N.W. 2d 813, a case quoted with approval by the Supreme Court of Nebraska in Little v. Loup River Power District, supra, the “Proprietary rights reserved to the owner of the fee are to be distinguished from unaccepted promises of the condemner to do something in the future for the benefit of the owner * * *. There is a distinction between an appropriation subject to rights of the land owner excepted therefrom and left unaffected thereby in him and an attempt to impose unaccepted promissory stipulations and proposed agreements by the condemning party in respect to undertakings to be performed subsequent to the time of the appropriation. The unaccepted promise or proposal to do something in the future upon the happening of some contingency does not affect the character or extent of the rights acquired or the amount required to be paid as just compensation.” The owner cannot be compelled to accept a mere offer, neither can he be compelled to sell to a third party, a part of his property.
The majority opinion is against public policy in that the market values of the properties involved must be fixed at a definite time. In the event the majority opinion becomes the law, nothing but confusion can possibly result. The time interval between the date of taking (December 5, 1955, in this case) and the date when actual use of the land begins (in this case, I assume May 1, 1957) would necessarily be considered as a right reserved to the landowner, although his right to contract had long since passed. The opinion places upon the landowner the *516onerous duty to salvage what he can in order to minimize the damages. In our case the undisputed evidence shows that the highest value to be placed upon the land involved can be attributed to the gravel. The only issue in the case was the value for gravel purposes. The charge of the court permitted the jury to ignore all evidence of the value of any gravel which would be lost after the line was constructed.
This case should be reversed and remanded for a new trial.
Opinion delivered April 30, 1958.
Rehearing overruled June 11, 1958.