Shebwood, P. J.
I. The trial court did not err in rejecting the record of the condemnation proceedings instituted by the Tebo & Neosho Railroad Company. It is true that, under the terms of the charter, five days notice was sufficient. Laws 1859-60, pp. 402, 404; Laws 1857, sec. 9, pp. 60, 61.
But the notice in this case was not served as required by law. The ninth section says: ‘‘Notice of such application to such judge shall be given to the owner of such lands five days before such application shall be made, if such owner reside in this state,” etc. The service in this case was “ either personally cr by due course of mail.” Unless the statute authorize a substituted or constructive service, the law will intend that personal service is required. Wade on Notice [2 Ed.] secs. 1134, 1137, 1138; Leach v. Cargill, 60 Mo. 316.
Service of process by “due course of mail” was not recognized by the statute in question, and was therefore invalid. But even if Doyle had been properly notified and thus had his day in court, there is nothing to show that the Tebo & Neosho Railroad Company-had ever conveyed to any one any supposed title it had acquired to the land in litigation.
II. Complaint is made that error occurred in the refusal of the trial court to permit Doyle, a brother of the deceased, to state the declarations of the latter as [286]*286to the amount assessed by the commissioners. This was objected to on the ground that the assessment itself was the best evidence on that point. It is, however, now claimed that such evidence was competent to show acquiescence of the ancestor of plaintiffs in such condemnation proceedings. This point was not developed in the lower court; but if it had been, conceding its relevancy, still if any error occurred at the first, it was cured by reason of plaintiffs endeavoring to bring out from the same witness the whole of the conversation referred to, but this was prevented by the defendant’s own objection.
III. The next point for determination is in regard to the statute of limitation. ¡ The court below evidently thought that the statute of five years was a bar-for any njury done by the defendant company to any part of the land by laying a portion of its track prior to the death of Doyle. This is apparent from the ninth instruction asked and given at defendant’s instance. This theory was the correct one if this is to be regarded simply as an action of trespass, because, if so regarded, undoubtedly the statute of five years had run at the time this suit was brought as to any injury done to the land during the life of Doyle, the father. But we are not of opinion that this is an action of trespass, and for these reasons recovery is sought for the value of the strip of land, appropriated for the right of way and also for damages caused to the residue of the land by fitting that strip for use' as a railroad track. Doubtless Doyle or his heirs at law, if not barred, could have maintained •successive actions of trespass against the intruding company; each day’s continuance of the intrusion furnishing a fresh cause of action, and a judgment and satisfaction of any one of such successive causes of action opposing no barrier to similar suits. . But, where the injury is necessarily of a permanent nature, as in the [287]*287case at bar, and consists in the absolute talcing■ of a strip of ground, and doing this in such a manner as to incidentally injure the entire property abutting on the strip, there the damage, because of its permanency, will admit of but one recovery, which will obviously include all damages past, present and prospective. Pierce on Railroads, p. 230; Lewis on Eminent Domain, sec. 625; Van Hoozier v. Railroad, 70 Mo. 145; Dickson v. Railroad, 71 Mo. 579; Givens v. Van Studdiford, 86 Mo. 149.
This being the case, a judgment of recovery and satisfaction thereof will operate to vest in the defendant company an easement in the land as much so and as effectually to all intents and purposes as if condemnation proceedings had been regularly instituted and conducted. Pierce on Railroads, 230-31; Lewis on Eminent Domain, sec. 625.
Now it is obvious that, in the circumstances already related, if the plaintiffs had chosen to resort to ejectment, nothing short .of the time specified in the ten years statute would have barred them from recovering the land. But they had it at their option, within the time they might have sued for the land itself, to sue for the value of that land and incidental damages, by reason of its having been taken and the method of such taking; consequently, the five years bar which may be appropriately invoked in simple actions of trespass does not apply and cannot apply to a case of this sort, where the result of the judgment and its satisfaction will be to vest the title in the defendant company as effectually as if resultant from regular proceedings for condemnation. Besides, here, it being entirely at the option of the plaintiffs whether they would sue or whether forbear, it is quite evident that there could be no point or period of time at which the five years statute could begin to run against the exercise of that [288]*288option in bringing the present action. We, therefore, bold they were not barred.
IV. The measure of damages was correctly declared by the court in the second instruction given on behalf of' plaintiffs. It told the jury to take into consideration the actual value of the strip of land taken and appropriated for the right of way and also the diminution in value caused thereby,' if any, to the residue of plaintiff’s land from which the right of way was taken. This theory of the estimation of damages in such cases-was recently approved in a well considered opinion by Bbace, J., and the rule announced, as deducible from the authorities both in this state and elsewhere, that, in this form of procedure, “the .injury being the same and the damage the same, the compensation should be the same” as in ordinary condemnation proceedings. McReynolds v. Railroad, 110 Mo. 484.
This view disposes of the eighth instruction asked by defendant and refused by the court, to the effect that admitting the wrongful entry, etc., yet that the jury should be restricted to the actual value of the strip of land taken for the right of way.
V. Complaint is made of the instruction given by the court of its own motion, which in substance told the jury that, if they found the facts to be as stated in the petition, and that the defendant did these acts and injuries therein set forth, they should find the issues for the plaintiffs. The ground of objection to this instruction is that it does not tell the jury of what date they are to assess the value of the property. Conceding this, it does not follow that the instruction is faulty in the particular mentioned. It merely undertook to give general .directions to the jury in what event they should find the issues for plaintiffs, and it was correct as far as it went. If defendant desired an instruction on the point suggested, an appropriate [289]*289instruction should have been asked. To affirm the validity of defendant’s objection would be equivalent to declaring that the duty of a trial court is the same in civil cases as in criminal. Railroad v. Town-Site Co., 103 Mo. 468.
YI.
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Shebwood, P. J.
I. The trial court did not err in rejecting the record of the condemnation proceedings instituted by the Tebo & Neosho Railroad Company. It is true that, under the terms of the charter, five days notice was sufficient. Laws 1859-60, pp. 402, 404; Laws 1857, sec. 9, pp. 60, 61.
But the notice in this case was not served as required by law. The ninth section says: ‘‘Notice of such application to such judge shall be given to the owner of such lands five days before such application shall be made, if such owner reside in this state,” etc. The service in this case was “ either personally cr by due course of mail.” Unless the statute authorize a substituted or constructive service, the law will intend that personal service is required. Wade on Notice [2 Ed.] secs. 1134, 1137, 1138; Leach v. Cargill, 60 Mo. 316.
Service of process by “due course of mail” was not recognized by the statute in question, and was therefore invalid. But even if Doyle had been properly notified and thus had his day in court, there is nothing to show that the Tebo & Neosho Railroad Company-had ever conveyed to any one any supposed title it had acquired to the land in litigation.
II. Complaint is made that error occurred in the refusal of the trial court to permit Doyle, a brother of the deceased, to state the declarations of the latter as [286]*286to the amount assessed by the commissioners. This was objected to on the ground that the assessment itself was the best evidence on that point. It is, however, now claimed that such evidence was competent to show acquiescence of the ancestor of plaintiffs in such condemnation proceedings. This point was not developed in the lower court; but if it had been, conceding its relevancy, still if any error occurred at the first, it was cured by reason of plaintiffs endeavoring to bring out from the same witness the whole of the conversation referred to, but this was prevented by the defendant’s own objection.
III. The next point for determination is in regard to the statute of limitation. ¡ The court below evidently thought that the statute of five years was a bar-for any njury done by the defendant company to any part of the land by laying a portion of its track prior to the death of Doyle. This is apparent from the ninth instruction asked and given at defendant’s instance. This theory was the correct one if this is to be regarded simply as an action of trespass, because, if so regarded, undoubtedly the statute of five years had run at the time this suit was brought as to any injury done to the land during the life of Doyle, the father. But we are not of opinion that this is an action of trespass, and for these reasons recovery is sought for the value of the strip of land, appropriated for the right of way and also for damages caused to the residue of the land by fitting that strip for use' as a railroad track. Doubtless Doyle or his heirs at law, if not barred, could have maintained •successive actions of trespass against the intruding company; each day’s continuance of the intrusion furnishing a fresh cause of action, and a judgment and satisfaction of any one of such successive causes of action opposing no barrier to similar suits. . But, where the injury is necessarily of a permanent nature, as in the [287]*287case at bar, and consists in the absolute talcing■ of a strip of ground, and doing this in such a manner as to incidentally injure the entire property abutting on the strip, there the damage, because of its permanency, will admit of but one recovery, which will obviously include all damages past, present and prospective. Pierce on Railroads, p. 230; Lewis on Eminent Domain, sec. 625; Van Hoozier v. Railroad, 70 Mo. 145; Dickson v. Railroad, 71 Mo. 579; Givens v. Van Studdiford, 86 Mo. 149.
This being the case, a judgment of recovery and satisfaction thereof will operate to vest in the defendant company an easement in the land as much so and as effectually to all intents and purposes as if condemnation proceedings had been regularly instituted and conducted. Pierce on Railroads, 230-31; Lewis on Eminent Domain, sec. 625.
Now it is obvious that, in the circumstances already related, if the plaintiffs had chosen to resort to ejectment, nothing short .of the time specified in the ten years statute would have barred them from recovering the land. But they had it at their option, within the time they might have sued for the land itself, to sue for the value of that land and incidental damages, by reason of its having been taken and the method of such taking; consequently, the five years bar which may be appropriately invoked in simple actions of trespass does not apply and cannot apply to a case of this sort, where the result of the judgment and its satisfaction will be to vest the title in the defendant company as effectually as if resultant from regular proceedings for condemnation. Besides, here, it being entirely at the option of the plaintiffs whether they would sue or whether forbear, it is quite evident that there could be no point or period of time at which the five years statute could begin to run against the exercise of that [288]*288option in bringing the present action. We, therefore, bold they were not barred.
IV. The measure of damages was correctly declared by the court in the second instruction given on behalf of' plaintiffs. It told the jury to take into consideration the actual value of the strip of land taken and appropriated for the right of way and also the diminution in value caused thereby,' if any, to the residue of plaintiff’s land from which the right of way was taken. This theory of the estimation of damages in such cases-was recently approved in a well considered opinion by Bbace, J., and the rule announced, as deducible from the authorities both in this state and elsewhere, that, in this form of procedure, “the .injury being the same and the damage the same, the compensation should be the same” as in ordinary condemnation proceedings. McReynolds v. Railroad, 110 Mo. 484.
This view disposes of the eighth instruction asked by defendant and refused by the court, to the effect that admitting the wrongful entry, etc., yet that the jury should be restricted to the actual value of the strip of land taken for the right of way.
V. Complaint is made of the instruction given by the court of its own motion, which in substance told the jury that, if they found the facts to be as stated in the petition, and that the defendant did these acts and injuries therein set forth, they should find the issues for the plaintiffs. The ground of objection to this instruction is that it does not tell the jury of what date they are to assess the value of the property. Conceding this, it does not follow that the instruction is faulty in the particular mentioned. It merely undertook to give general .directions to the jury in what event they should find the issues for plaintiffs, and it was correct as far as it went. If defendant desired an instruction on the point suggested, an appropriate [289]*289instruction should have been asked. To affirm the validity of defendant’s objection would be equivalent to declaring that the duty of a trial court is the same in civil cases as in criminal. Railroad v. Town-Site Co., 103 Mo. 468.
YI. In the case just mentioned it was ruled in an exhaustive opinion by Macfarlane, J., that, where a railway company entered upon land without authority and proceeded to construct its road over same, and afterwards proceeded to condemn the right of way thus taken, the damages should be based on the value of the land at the time of the assessment, and this ruling evidently rests on a basis of both the organic and statutory law, which is not to be shaken.
In this case, however, the testimony was directed to the value of the property in 1883, and, so far as the record shows, this was done without any objection from defendant. It may well be conjectured that the evidence being directed towards the value of the land some seventeen years prior to the trial was far more favorable to defendant than if the value had been estimated at the time when the trial occurred; so on this point there is no ground of complaint.
VII. The second instruction asked by defendant, it is urged, should have been given, to-wit: That “as to any lands purchased by plaintiffs after the grade was constructed thereon, there can be no recovery herein.” Under the rule stated in Hilton’s Case, 99 Mo. 199, this would be correct if this were a suit in ordinary form for damages done to land; but it is for taking the land itself and damage done that part not taken. Besides the subsequent entry and taking by the defendant was a continuation of the original wrong. Wood on Nuisances [2 Ed.] 78, 969.
Furthermore, by the second instruction given for plaintiffs, the court forbade the jury in estimating the [290]*290damage done from considering any done prior to the death of Doyle.
VIII. It is said that instruction 2 given for plaintiffs, and already touched upon, was erroneous in that it did not tell the jury that defendant was entitled to have deducted from any damages suffered any special benefits received. The remark is applicable to this point as to a similar one made by defendant as to the instruction'given by the court of its own motion. And in addition it may be said that there was no evidence on the subject of special benefits.
IX. Finally it is said that the verdict is excessive and indicates partiality, etc. Some of the testimony shows that the farm was damaged more than the amount of the verdict, and this leaves out of consideration the value of the strip taken.
Upon the whole record the judgment should be. affirmed.
All concur.