I dissent from the order denying a rehearing of this cause. It is not decided, and I do not think it ought to be held, that where the whole controversy in a condemnation case is over the compensation to which the land owner is entitled, the plaintiff has the unqualified right to dismiss the proceeding upon payment of costs after he has subjected the defendant to heavy expenses in addition to court costs in the legitimate effort to prove the loss and damage that he will sustain in consequence of the condemnation sought. This was the main question in the case, but it is left undecided, because, as the district court holds, conceding the power of the superior court to make the order of dismissal conditional, it has made it unconditional. I do not so construe the order. It was clearly intended to be conditional, and the form in which it was entered does not forbid that *Page 220 construction, or deprive it of that effect, if, as conceded for the purposes of the decision, it was in the power of the court to give it that effect.