The opinion of the court was delivered by
JOHNSTON, J.:
The St. Louis, Fort Scott & Wichita Railroad Company constructed its railroad through the county of Bourbon, and over certain lands of Eveline Wier, in the early summer of 1881. The company took and occupied land of the plaintiff’s for a right-of-way, depot grounds and stock yards, with her consent, and upon agreements whereby certain conditions were subsequently to be performed by the railroad company. The terms of the agreement or agreements made *139are now the subject of dispute. The plaintiff claims that tbe conditions were not observed or performed by the company; and in March, 1885, nearly four years after the building of the railroad, she instituted proceedings to obtain compensation for the land so taken and occupied. The railroad company alleges that it obtained from the plaintiff the right to use the land for railroad purposes in consideration of the location of its side-tracks and depot, and the building and location of stock yards upon the plaintiff’s premises, and also the building of hog-tight fences along the right-of-way; which side-tracks, depot, stock yards and fences were so located by the company and for the further consideration of the issuance to the plaintiff and her son, Charles Wier, of two passes over the defendant’s line of road. The plaintiff admits that these were the considerations upon which the land was conveyed, but claims that the stock yards were not built upon the identical place agreed upon, and that by the terms of the agreement the depot was to have been completed upon January 1, 1882, whereas it was not finished until the latter part of the same month; and therefore that the railroad company forfeited its right to the land under the agreement. The company answers that there was a substantial compliance with the terms of the agreement, and that a strict compliance therewith has been waived by the acts and conduct of the plaintiff.
The referee to whom was referred the issues of law and fact in the case found in favor of the plaintiff, except as to the right-of-way through the town-site of Bronson; and with respect to that the finding is that the plaintiff, by acknowledging and filing a plat of the town-site of Bronson, in which she stated that the railroad company was entitled to a right-of-way 100 feet wide as shown upon the plat, thereby dedicated the right-of-way through the town-site, and that by such' dedication the defendant acquired a right to the same for a right-of-way. The report of the referee was set aside and a new trial granted upon a motion which contained numerous grounds, and we are unable to ascertain from the record the grounds upon which the ruling was placed.
*140If any of the reasons assigned are sufficient, the ruling of the district court in granting a new trial will not be interfered with. Among the objections made to the report of the referee, and one of the principal ones, is that the damages were not assessed upon a correct measurement. Witnesses were permitted to testify what the damages were at the time of the condemnation proceedings, and the damages were assessed by the referee as of April 18, 1885, the time when the report of the commissioners in this proceeding was filed. In this respect the referee was in error. The damages, if 'the plaintiff was entitled to any, should have been fixed as of the time when the property was taken and appropriated by the railroad company, instead of the time when this condemnation proceeding was had. The company entered upon and used the plaintiff’s land with her consent, and although it has had the actual possession of the land for years the plaintiff has never treated the company as a trespasser. In fact, both parties have always treated the entry upon and the occupancy of the land as a permanent appropriation. Instead of bringing an action for trespass or to eject the railroad company from the land, the plaintiff simply sues for compensation; and she thus indicates that she does not now regard the possession of the company to be a trespass; but she ratifies the appropriation, and only seeks compensation for what has been taken. The general current of authorities is that in all such cases compensation should be ascertained and assessed as of the time when the property was taken. There is some diversity of opinion as to what constitutes a taking where the right-of-way is acquired by proceedings in advance of actual occupancy; but where, as in this case, the possession is taken by consent of the owner, followed by the location and construction of the road, the time of going into such actual possession is clearly the time of taking, rather than the periocj of condemnation proceedings, which for some reason may have been postponed. This subject has already been fully considered by this court in two cases, where it is decided that under circumstances such as are presented here the damages will be measured as of the time *141when the company first takes possession of the land and occupies it as a right-of-way. (C. B. U. P. Rly. Co. v. Andrews, 26 Kas. 702; Cohen v. St. L. Ft. S. & W. Rld. Co., 34 id. 158. See also the numerous cases there cited.) Upon the authority of these cases, we must hold that the referee adopted an incorrect rule in fixing the damages; and we must necessarily sustain the decision of the district court in setting aside the report and in granting a new trial.
We cannot in this proceeding go further and determine whether or not compensation has been given. That question depends upon facts which are in dispute, and, as there is to be another trial, we cannot with propriety discuss them. Whether the memorandum made at the time of the execution of the deed given for the right-of-way was a distinct agreement, intended to abrogate all former obligations, or was only supplemental to the agreements already made, is a subject of controversy. While the passes stipulated for were furnished and used, and while the depot, side-track and stock yards were constructed upon the plaintiff’s land, it is true that the depot was not completed until some time after the time it was stipulated to be done in the memorandum, and the stock yards were not located upon the exact portion of the premises agreed upon. The defendant claims that under the circumstances time was not of the essence of the contract; and that if it was, the plaintiff is not in a condition to insist upon a strict compliance with the conditions of the contract. It may be remarked that forfeitures are not favored by the courts. If the plaintiff allowed the defendant to proceed with the building of the depot at a later time, and the stock yards at another place, than was stipulated for, as a part of the consideration for the land, without objection, and subsequently accepted passes or other consideration for the conveyance of the land, she would hardly be in a position to insist on a forfeiture, or a strict compliance with the conditions of the contract. The testimony given upon another trial with respect to these matters may differ from that which is in the record of this case, *142and therefore we arre not at liberty to finally determine them on this record.
The judgment of the district court will be affirmed.
All the Justices concurring.