(dissenting): I do not believe the court’s holding in ¶¶ 1(c) and 2 of the syllabus and the corresponding portion of the opinion correctly decides this case. G. S. 1955 Supp. 68-2006 provides in part that when property is acquired by eminent domain that, “Any such proceedings shall be conducted, and the compensation to be paid shall be ascertained and paid, in the manner provided by the laws of the state then applicable to condemnation or the exercise of the power of eminent domain by the state highway commission . . .” G. S. 1955 Supp. 68-413 authorizes the State Highway Commission to acquire titlé by eminent domain, and provides in part, “The right of eminent domain when exercised as herein provided shall be in accordance with the provisions of article 1, Chapter 26 of the General Statutes of 1949 or any amendments thereto, and in addition to the notice required therein all lienholders of record of the condemned land must also be notified. . . .” G. S. 1949, 26-101 provides for the filing of "... a petition *62setting forth the purpose for which the land is sought to be acquired, a description of each lot and parcel of ground and the name of the owner ... as shown by the records of such county.” In State, ex rel., v. State Highway Comm. 163 Kan. 187, 182 P. 2d 127, it was held the trial court must first determine that the land sought to be acquired is necessary to the purposes of the Commission (the Authority) and that when an affirmative determination is made, it is binding on the Commission (the Authority) and cannot be collaterally attacked. In G. S. 1955 Supp. 68-2006 provision is made that title to any property condemned by the Authority shall immediately vest in the Authority and it shall be entitled to the immediate possession of the same upon depositing with the clerk the total amount of the appraised price, court costs and fees, notwithstanding any of the parties to such proceedings shall appeal from the appraisement.
From these proceedings it is apparent that two basic matters are dealt with: first, the land itself, described in the petition (State, ex rel., v. State Highway Comm. supra); and second, compensation for the land taken together with damages, if any, to the land remaining (Federal Land Bank v. State Highway Comm. 150 Kan. 187, 92 P. 2d 72; State Highway Commission v. Weiss, 167 Kan. 427, 207 P. 2d 480). The proceeding is essentially one in rem (K. & C. P. Rly. Co. v. Phipps, 4 Kan. App. 252, Syl. 2, 45 Pac. 926). In my judgment, an appeal by the petitioner or a landowner, or a lienholder, or any interested party, or either of them, brings to the district court in its entirety the question of whether or not the amount of the award is adequate compensation for the land taken and the damages to the land not taken. Our decisions sustain this view. (Dye v. Railroad Co., 77 Kan. 488, 492, 94 Pac. 785; K. & C. P. Rly. Co. v. Phipps, p. 257, supra; Sinclair v. Missouri Pac. Rld. Co. 136 Kan. 764, 766, 18 P. 2d 195; Nelson v. City of Osawatomie, 148 Kan. 118, 121, 79 P. 2d 857; Federal Land Bank v. State Highway Comm. supra; State Highway Commission v. Weiss, supra.)
The majority opinion states in effect that the use of the disjunctive in the first part of G. S. 1955 Supp. 26-102, which reads, “If the petitioner or the landowner or any lien holder of record. . . .” (Emphasis ours) indicates a legislative intent that separate trials are afforded those entitled to appeal from the award of the appraisers. This court has held to the contrary. In Federal Land Bank v. State Highway Comm., supra, it was held:
*63“Whenever, under Laws 1937, ch. 226, § 1 (G. S. 1937 Supp. 26-102), an appeal is taken to the district court, either by the petitioner or by the landowner or by a lienholder from an appraisement made in proceedings in eminent domain had under G. S. 1935, 26-101, the effect is to bring to the district court in its entirety the question of the sufficiency of the award, and the trial of that issue in the district court is conclusive on all of the parties, subject only to their right of appeal to the supreme court.” (Syl. 1.)
And, in the opinion it was said:
“It will be observed that under that statute appeal is perfected, not by serving notice on any parties occupying what might be called an adverse position; it is perfected by notice filed with the clerk of the court. There is nothing in that statute which indicates or leads to the conclusion that as to a particular tract of ground the petitioner might appeal as to the lienholder and not the landowner, or vice versa, or that the lienholder could appeal separately as between the petitioner and the landowner, or that the landowner could appeal separately as between the petitioner and the landowner, or that the landowner could appeal separately as between the petitioner and the lien-holder. The statement is that if any one of the three appeal, an action shall be docketed and tried. The statute provides its own procedure up to the point where the appeal is perfected. When that has been accomplished 'an action shall be docketed and tried the same as other actions.’ We are of opinion that under the statute there is and can be no separation as between parties. Whenever an appeal is taken, either by the petitioner or by the landowner or by a lienholder, the effect is to bring to the district court in its entirety the question of the sufficiency of the award, and the trial of that issue in the district court is conclusive on all of the parties, subject only to their right of appeal to this court. . . .” (pp. 189, 190.)
The question before the district court on the motion to assign all appeals for trial in a single action was not whether the separate appeals of the landowner, the tenant, or the Authority should be consolidated, but whether they could be severed, and in the Federal Land Bank case, supra, this court said, “We are of opinion that under the statute there is and can be no separation as between parties. . . .” (Emphasis ours.)
It was further said,
“What division of the appraisement or award there is to be between him and the landowner must still be such as the court, in the exercise of its equitable power and jurisdiction, may think proper. Prior to the amendments, when no notice to a lienholder was required, it was possible for the landowner to appropriate the entire appraisement or award to himself, for no notice was required to be given to the lienholder. The two amendments recognized that the lienholder had an equitable interest in the appraisement or award and provided for its protection. As we view the matter, it makes no difference who may appeal from the appraisement; on trial in the district court the issue is the same, that is, whether or not the amount of the appraise-*64merit is adequate compensation for the lands taken and the damages to the lands not taken. . . .” (pp. 190, 191.) (Emphasis ours.)
Our decisions are to the effect that the various owners’ interests in the property condemned are transferred to the award allowed as damages to compensate them for the value of the land taken and for damages to the remaining land (K. & C. P. Rld. Co. v. Phipps, supra; Dye v. Railroad Co. supra; C. K. & W. Rld. Co. v. Sheldon, 53 Kan. 169, 35 Pac. 1105; Federal Land Bank v. State Highway Comm. supra; State Highway Commission v. Weiss, supra). When the award is paid into the clerk’s office, anyone having an interest in the land appropriated or a claim upon the fund may take proceedings to protect his interest or claim (C. K. & W. Rld. Co. v. Sheldon, supra; Dye v. Railroad Co., supra).
Where there are several interests or estates in a parcel of real estate taken by eminent domain, the prevailing rule is that the proper method of fixing the value of each interest or estate is to determine the value of the property as a whole, and then apportion the same among the several owners according to the& respective interests or estates rather than to take each interest or estate as a unit and fix the value thereof separately. A few of the numerous authorities which support this rule are: United States v. 25,936 Acres of Land, Etc., 153 F. (2d) 277; City of St. Louis v. Rossi, 333 Mo. 1092, 64 S. W. 2d 600, and the many authorities cited therein indicating that this rule is in effect in England, Massachusetts, Illinois, Kentucky, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Washington and Wisconsin; Grand River Dam Authority v. Gray, 192 Okla, 547, 138 P. 2d 100; Eagle Lake Improvement Co. et al. v. United States, 160 F. (2d) 182; Meadows v. United States, 144 F. (2d) 751; State, ex rel. McCaskill v. Hall, 325 Mo. 165, 28 S. W. 2d 80, 69 A. L. R. 1256; Carlock v. United States, 53 F. (2d) 926; Bogart v. United States, 169 F. (2d) 210; Kohl et al. v. United States, 91 U. S. 367, 23 L. ed. 449; 6 Nichols (Third ed.), Eminent Domain, §24.1 [1], p. 4; 18 Am. Jur., Eminent Domain, § 316, p. 960. See, also, extensive notes in 69 A. L. R. 1263, 98 A. L. R. 260, 166 A. L. R. 1211. The following decisions of this court support this view: C. K. & W. Rld. Co. v. Sheldon, supra, p. 172; Dye v. Railroad Co., supra, pp. 491, 492; K. & C. P. Rly. Co. v. Phipps, supra, p. 257. In City of St. Louis v. Rossi, supra, it was said:
“The well-established general rules of eminent domain seem to be that when a piece of property is taken, in which the ownership is divided into *65several interests, that as between the public and the owners, it is considered one estate; that the public right is exercised upon the land itself without regard to the subdivisions of interest; that the amount of the. value of the land to which each one of the owners of the interests is entitled is no concern of the condemner; that the various owners’ interests in the property are transferred to the fund, allowed as damages to compensate them for the injury to the land, which is substituted for the property taken; that the value of the property taken is all that the condemner must pay and this value cannot be increased by any contracts or distribution among the different persons owning interests in it; and that the sum of all the parts cannot exceed the whole. . . .” (1. c. 1102.)
On this same point in a Kansas controversy, Chief Judge Phillips, in Bogart v. United States, 169 F. (2d) 213, said:
“A condemnation proceeding is an in rem proceeding and when land is taken in which separate interests or estates are owned by two or more persons, as between the public and the owners, it is regarded as one estate. One award is just compensation for the entire value of the land is made and it stands in place of the property appropriated as the equivalent thereof. The distribution of the award between the owners of separate interests or estates is a matter wholly between them and the public is not concerned therewith.”
That an owner of a leasehold interest is an owner of property in the constitutional sense and entitled to share in the compensation when all or part of the property leased is taken by eminent domain is well settled. (Bales v. Railroad Co., 92 Kan. 771, 141 Pac. 1009; State Highway Commission v. Safeway Stores, 170 Kan. 413, 226 P. 2d 850, 170 Kan. 545, 228 P. 2d 208; Miles v. City of Wichita, 175 Kan. 723, 267 P. 2d 943.) Rut, the right to share in the award does not entitle such owner to a separate trial by a separate jury to determine compensation and damages for the separate interests appropriated. One eminent domain proceeding was instituted in the instant case to acquire the land described for which only one award may be made.
As stated in State Highway Commission v. Weiss, supra, “The question to be determined in such appeal is the amount of compensation or damages, if any, to be awarded on account of the appropriation by the condemner of the property in question.”
Separate interests in the land acquired are transferred to the single award, which is substituted for the property taken, and the value of the parts cannot exceed the value of the whole. A condemner ought not be required to pay more for separate interests than the land acquired would be worth if owned by one person. The value of each interest is ascertained by determining the value *66of the land as a whole, which may he apportioned among the several owners as their respective interests may appear and as the district court in the exercise of its equitable power and jurisdiction may deem proper. (Federal Land Bank v. State Highway Comm., supra.)
I would reverse the judgment and remand this case to the district court with directions to proceed with the trial of all appeals in one case in which the landowner, the owner of the leasehold interest and the Authority may present their evidence to one jury to determine the sufficiency of the award with respect to the value of the land taken and damages, if any, to the land remaining.
Wertz, J., concurs with the foregoing dissent.