This is an action brought by the defendant in error against the plaintiff to recover damages for injury to certain real estate of the defendant during the years 1880, 1881, and 1882. The cause of action is stated as follows: “ That the defendant (plaintiff in error) during the years A. d. 1880, 1881, and 1882, did unlawfully and with force and arms, break, enter, occupy, and ever since has occupied a portion of the close of plaintiff heretofore described, and then and there dug, excavated, removed, and piled up the soil and earth of the plaintiff, and then and there built and laid their line of railroad which they have
The defendant below (plaintiff’ in error), in its answer,, alleges that, 2d, in the years 1880, 1881, the defendant located and constructed its line of railroad over and across-a portion of the said described real estate, by building and constructing a road-bed and track for its line of road; that defendant took possession of the strip of ground necessary for the right of way and location of said road peaceably and quietly, and without any objection or protest on the part of the plaintiff; and the defendant has ever since occupied the same for right of way for its road track in the usual course of its business as a public carrier. * * *
8d. “ That it (the defendant below) built and constructed its line of road into and through a portion of Gage county in the year 1880 and 1881, and that prior to the location and construction of the same the said defendant purchased and condemned the right of way for its line of road ; that prior to its construction the defendant needed and desired a portion of the plaintiff’s said land for right of way,, and tried to agree with plaintiff upon the amount of damage to be paid for said right of way, but the plaintiff and defendant failing to agree upon the amount of damages to-be paid, the defendant proceeded, as by statute provided, and prior to the construction of said track, to condemn the-right of way over the said land,” etc.
The reply is a general denial.
On the trial of the cause the jury returned a verdict in-favor of the plaintiff below for the sum of $500, upon which judgment was rendered.
Sec. 100 provides that, “If upon the location of said ■railroad it shall be found to run through the lands of any non-resident owner, the said corporation may give four weeks’ notice to such proprietor, if known, and if not known, by a description of said real estate by publication four con•seeutive Aveeks in some neAvspaper published in the county where such lands lie,” etc., * * * “ and upon payment of the damages assessed to the probate judge of the proper county for such owner, the corporation shall •acquire all rights and privileges mentioned in this subdivision.”
By Sec. 97 it is provided, “ that either party may have the right to appeal from such assessment of damages to the district court of the county in Avhich such lands are situated, within sixty days after such assessment. And in case of such appeal the decision and finding of the district court ■shall be transmitted by the clerk thereof, duly certified, to
Sec. 21 of Art. 1 of the constitution provides that, “the property of no person shall be taken or damaged for public use without just compensation therefor.”
Our statute, in effect, provides that a railroad company may, if need be, go upon land not belonging to it and locate its line over it, but, before it appropriates the land to its own use, it must pay to the land-owner or deposit with the county judge for his use the amount of the award made by the commissioners. The proceedings to condemn may be instituted by either the land-owner or the corporation, but the award must be made and the money paid or deposited before the corporation has any legal right to appropriate the property. Menk v. O. & N. W. R. R., 4 Neb., 21. Ray v. A. & N. R. R., 4 Neb.,.439. ,If this is not done, ah action for injury to the possession will lie, because the corporation has no legal right to occupy the premises. Payment for the property appropriated-must precede, or at least be concurrent with, the appropriation of the property. The statute, while it authorizes the corporation to condemn such property as it may require for the construction of its road, protects the citizen as well, by requiring just compensation to be made therefor. The law does not require the citizen to institute proceedings to protect his rights, but merely permits him to do so. Constitutional guarantees of the rights of property would be of very little value if a corporation could seize the property of an individual and say to the owner, if you want compensation for this property institute proceedings to condemn it, and after we think the proper-amount is awarded we will pay you. Where the assent of the owner is not obtained the corporation must pay the condemnation money before it acquires the right to construct
This action is. brought by the plaintiff below to recover damages sustained by him for injuries to his land. The corporation does not acquire an easement in the right of way by the verdict in this case; that can only be done by condemnation proceedihgs. The measure of damages, therefore, as stated in the above iustructions, is incorrect, and must have been prejudicial. Until the land is condemned and the damages paid the corporation is a trespasser and is liable for the actual injury sustained, but that does not include the value of the land taken. The condemnation proceedings are shown to have been nugatory, by reason of the failure to serve the defendant in error, who was a nonresident of the state, with notice. They afford no justification, therefore, to the action.
Reversed and remanded.