(dissenting).
It was determined below that Capitol Livestock suffered $108,322 in damage to the 6.69' acre remainder because of the taking of the 0.8107 of an acre. This court decrees that there may be no compensation for that damage, because at the time of “taking” Capitol Livestock had parted with equitable title to the 6.69 acres.
There is no question here as to the relative right to compensation between Capitol Livestock and its vendee, Blackwell. Under the circumstances of this case we should presume that Capitol Livestock retained this right of recovery. But even if the record had shown a written agreement to that effect, and a disclaimer by Blackwell, the holding of the majority would still deny recompense.
The court here is concerned with rules as to the date of “taking” and as to the requirement of unity of use and ownership. I believe that neither rule should prevent recovery by the landowner.
But for this condemnation, there would be only one tract. The partial acre was lost to this 7.5 acre tract only because of the highway condemnation. The deed from Capitol Livestock to Blackwell was not delivered until after December 12, which was the date of taking when the money was deposited in court by the con-demnor. I would hold that Capitol Livestock’s legal title gave unity of ownership, and I would not regard the condemnor’s own line of severance as destroying unity of use.
We should go further to protect the landowner who wants to sell, or does sell, his *466land after the legal proceeding in condemnation is commenced but before the “taking.” Even if Capitol Livestock had delivered its deed on December 11, it would have been damaged. And under the other facts of this case, recovery should be permitted.
WALKER, J., joins in this dissent.