dissenting.
The majority opinion dismisses the constitutional issue of just compensation by indirectly overruling all the past Nebraska cases, without mentioning them, which have uniformly held that the “taking” is deemed to occur at the time the petition for condemnation is filed. The majority opinion now holds, in effect, that there is no “taking” until a condemner actually enters into possession. The majority opinion then states: “Condemner not having made the deposit or entered into possession, the statute precludes the payment of interest.” It is quite clear that, statute or no, something in the nature of interest must be included in a condemnation award in order to produce the full equivalent of the value of an award paid contemporaneously with the taking. This is without question the overwhelming general rule. See cases cited in Annotation, 36 A. L. R. 2d 413 and 443.
As this court said in a case similar to this where the condemner did not make any deposit: “* * * the owner *360is entitled to interest on the amount of the compensation from the taking no matter whether the verdict of the jury is larger or smaller than the award of the appraisers and no requirement rests upon the owner to make demand for such deposit or to take any action requiring such deposit to be made to entitle him to interest thereon.” Langdon v. Loup River Public Power Dist., 144 Neb. 325, at page 335, 13 N. W. 2d 168.
The only case found which directly considered the specific issue involved here is Central Nebraska Public Power & Irr. Dist. v. Fairchild, 126 F. 2d 302. That case was cited with approval in Langdon v. Loup River Public Power Dist., supra.
The court in Fairchild said: “The constitutional provision prohibiting the taking or damaging of private property for the public use without just compensation does not of itself suggest procedure for the taking of private property for such uses. That has evolved in Nebraska from the statute and from the decisions which firmly establish that for the purpose of assessing damages the ‘condemnation’ or ‘taking’ is deemed to occur at the time the petition for condemnation is filed.”
The court in Fairchild specifically rejected the argument, now adopted by the majority opinion here, that interest should not commence until the time of entry into possession by the condemner. Both the majority opinion and the dissent in Fairchild agreed that interest must be allowed from the date the petition for condemnation is filed but disagreed only as to the proper rule to be applied in requiring the condemnee to account for the use of the property during the time he retained possession. The majority held that the actual amount of rentals received by the landowner during the pendency of the appeal should be offset against the interest allowed while the dissent determined that the landowner ought to be required to account for the reasonable value of the use of the property during the time of retained possession and not simply for such rental payments as *361he had actually collected. As Judge Johnson said in the dissent: “The allowance of interest in a condemnation case in Nebraska is not a fixed statutory right, but simply a means of insuring ‘just compensation’ to the property owner. The only thing for which it can reasonably be held to constitute compensation is a deprivation of the use of the property or of the funds substituted for the property, during the condemnation litigation period.”
In this case, the tract of land condemned was held for development and was not rented or used during the litigation period. The filing of the condemnation action effectively stopped all uses to which it might otherwise have been put and there was no evidence that its use had any reasonable value during the period of litigation. All of the expert testimony as to value was as of the date of filing the petition for condemnation. In spite of that fact, the majority opinion now holds that the “taking” as to which all of those witnesses were testifying, did not occur until the condemner might decide to enter into possession or until the final verdict of a jury might be entered on appeal. That is clearly a violation of the constitutional mandate that “the property of no person shall be taken or damaged for public use without just compensation therefor.” The absence of a statute which specifically authorized interest was wholly immaterial. It should be noted also that the statute itself has now been changed to require deposit within 60 days from date of award of appraisers, and it entitles the condemnee to interest from date of deposit, where the appeal is by the condemner. § 76-711, Laws 1971, L. B. 191, § 1. There is even a serious question as to whether that statute by its own terms is applicable to pending appeals such as this one.
The judgment should have been reversed, and the condemnees should have judgment for the amount of the award with interest from the date the petition for condemnation was filed.
Smith and Clinton, JJ., join in this dissent.