30 Iowa 327 | Iowa | 1870
This section, in direct terms, gives to the railroad com.pany the right of appeal, and provides that, while the appeal is pending, the work may progress. But to this end, it is incumbent upon the company to deposit with the sheriff the amount assessed. The appeal would be shorn of half its benefits if the railroad, in order to adopt its provisions, is forced to an election, either to forego the prosecution of the work, or run the risk of recovering from the landowner the diminution of the damages upon appeal. It would be a novel construction, to hold that a
The property is not taken, in an absolute sense, until the amount assessed upon appeal is paid. If the appellate jury, in this case, shall assess less than the sheriff’s jury have assessed, the amount is secured to plaintiff, being in the sheriff’s hands; if they shall assess more, the plaintiff can, by injunction, prevent the absolute appropriation of his property, until the increased sum is paid. Richardson v. Des Moines Valley Railroad Co., 18 Iowa, 260.
In either event, the landowner is fully protected. We are clearly of the opinion that the money paid the sheriff should remain a deposit in his hands, until the damages are finally assessed in the appellate court. The demurrer to the answer of defendant was improperly sustained.
The judgment of the district court is
Reversed.