Mayes, J.,
delivered the opinion of the court.
On the 21st of July, 1905, the TIelm & Northwestern Railroad Company made application for condemnation of a strip of land to be used as a right of way for said company. The land sought to be condemned was the property of appellees. The proceedings leading up to the organization of the court of eminent domain seem to conform to all the requirements of the statute, and on the 29th day of July, 1905, the court met, viewed the land sought to be condemned, heard the evidence, the jury were instructed by the court, and the value of the land sought to be condemned assessed at something over $4,000; the jury giving’ to each of the defendants such proportion of said sum as they found the land belonging to him was worth. There is no complaint in any part of' the record as to the regularity of the proceedings leading up to the condemnation; the only complaint being as to the amount allowed by the jury. On the 7th day of August, 1905, appellants executed a bond, payable to appellees, in the sum of $300, in conformity to section 1696, Code 1892, and prayed an appeal to the next term of the circuit court. When the circuit court convened, the defendants on the 17th day of November, 1905, made the following motion; that is to say: A motion was made by the defendants to dismiss plaintiffs’ appeal for the reason that the amount awarded them by the eminent domain court had been paid into the hands of the clerk of the circuit court by the plaintiff for landowners, and was paid by the clerk to defendants, and the plaintiff thereupon entered the land and appropriated the same to its use for the [344] right of way, and this, it is claimed, was a settlement of the case. On hearing of this motion the following facts were agreed to, viz.: “It is agreed by counsel for plaintiff and counsel for defendants that it is a question of law, and it is agreed that $4,004, the award of the eminent domain court, was paid into the hands of the circuit cleric by the railroad company for defendants, as provided by section 1693 of the code of 1892, on the 19th of August, 1905. The clerk paid the money to the landowners on the 16th day of November, 1905. After the payment of the railroad company to the clerk, they proceeded to> enter the land and appropriate the same for its right of way.” On the hearing of this motion, the court sustained it and dismissed the appeal, to which action of the court appellant excepted, and prosecutes an appeal to this court, assigning as error the judgment of the court in dismissing the appeal.
Section 11, article 3, of the constitution of the State provides that “private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof in a manner to be prescribed by law.” It will be noticed that this section requires that due compensation be first made before the property can be taken or damaged for public use. Following out the further provision in this section of the constitution, which says that private property shall not be taken, etc., except on due compensation being first made to the owner or owners thereof in a manner to be prescribed by law, the legislature has prescribed the manner in which private property may be taken for public use in chapter 40 of the code of 1892, on the subject of eminent domain. By sec. 1693 it is provided that: “Upon the return of the verdict and entry of the judgment, if the applicant pay the defendant whose compensation is fixed by it, or tender to him the amount so found and pay the costs, he or it shall have the right to enter in and upon the land of such defendant so condemned, and to appropriate the same to the public use defined in the application; and in case the defendant and his attorney absent themselves from the [345] court, the payment may be made to the clerk of the circuit court for him, and such officer shall be responsible on his bond therefor and shall be compelled to receive it.” By this section of the code the applicant is given the right to enter upon the return of the verdict and entry of the judgment, if he pay the defendant the compensation fixed by the verdict, or tender him the amount so found and pay the costs, and by the same section it is also provided that, if the defendant and his attorney be absent from the court, payment may be made to the clerk of the circuit court for him. But this section clearly contemplates that there shall be no entry upon lands by the applicant until he shall have first paid the damages awarded by the verdict of the jury. Section 1696, providing for appeals, says: “Every party shall have the right to appeal to the circuit court from the finding of the jury in the special court by executing a bond with sufficient sureties, payable to his adversary, in a penalty of three hundred dollars, conditioned to pay all costs that may be adjuded against him, which bond shall be given within twenty days after the rendition of the verdict, and 'may be approved by the justice. If the appeal be by the defendant, it shall not operate as a supersedeas, nor shall the right of the applicant to enter in and upon the land of the defendant and to appropriate the same to public use be delayed.”
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Mayes, J.,
delivered the opinion of the court.
On the 21st of July, 1905, the TIelm & Northwestern Railroad Company made application for condemnation of a strip of land to be used as a right of way for said company. The land sought to be condemned was the property of appellees. The proceedings leading up to the organization of the court of eminent domain seem to conform to all the requirements of the statute, and on the 29th day of July, 1905, the court met, viewed the land sought to be condemned, heard the evidence, the jury were instructed by the court, and the value of the land sought to be condemned assessed at something over $4,000; the jury giving’ to each of the defendants such proportion of said sum as they found the land belonging to him was worth. There is no complaint in any part of' the record as to the regularity of the proceedings leading up to the condemnation; the only complaint being as to the amount allowed by the jury. On the 7th day of August, 1905, appellants executed a bond, payable to appellees, in the sum of $300, in conformity to section 1696, Code 1892, and prayed an appeal to the next term of the circuit court. When the circuit court convened, the defendants on the 17th day of November, 1905, made the following motion; that is to say: A motion was made by the defendants to dismiss plaintiffs’ appeal for the reason that the amount awarded them by the eminent domain court had been paid into the hands of the clerk of the circuit court by the plaintiff for landowners, and was paid by the clerk to defendants, and the plaintiff thereupon entered the land and appropriated the same to its use for the [344] right of way, and this, it is claimed, was a settlement of the case. On hearing of this motion the following facts were agreed to, viz.: “It is agreed by counsel for plaintiff and counsel for defendants that it is a question of law, and it is agreed that $4,004, the award of the eminent domain court, was paid into the hands of the circuit cleric by the railroad company for defendants, as provided by section 1693 of the code of 1892, on the 19th of August, 1905. The clerk paid the money to the landowners on the 16th day of November, 1905. After the payment of the railroad company to the clerk, they proceeded to> enter the land and appropriate the same for its right of way.” On the hearing of this motion, the court sustained it and dismissed the appeal, to which action of the court appellant excepted, and prosecutes an appeal to this court, assigning as error the judgment of the court in dismissing the appeal.
Section 11, article 3, of the constitution of the State provides that “private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof in a manner to be prescribed by law.” It will be noticed that this section requires that due compensation be first made before the property can be taken or damaged for public use. Following out the further provision in this section of the constitution, which says that private property shall not be taken, etc., except on due compensation being first made to the owner or owners thereof in a manner to be prescribed by law, the legislature has prescribed the manner in which private property may be taken for public use in chapter 40 of the code of 1892, on the subject of eminent domain. By sec. 1693 it is provided that: “Upon the return of the verdict and entry of the judgment, if the applicant pay the defendant whose compensation is fixed by it, or tender to him the amount so found and pay the costs, he or it shall have the right to enter in and upon the land of such defendant so condemned, and to appropriate the same to the public use defined in the application; and in case the defendant and his attorney absent themselves from the [345] court, the payment may be made to the clerk of the circuit court for him, and such officer shall be responsible on his bond therefor and shall be compelled to receive it.” By this section of the code the applicant is given the right to enter upon the return of the verdict and entry of the judgment, if he pay the defendant the compensation fixed by the verdict, or tender him the amount so found and pay the costs, and by the same section it is also provided that, if the defendant and his attorney be absent from the court, payment may be made to the clerk of the circuit court for him. But this section clearly contemplates that there shall be no entry upon lands by the applicant until he shall have first paid the damages awarded by the verdict of the jury. Section 1696, providing for appeals, says: “Every party shall have the right to appeal to the circuit court from the finding of the jury in the special court by executing a bond with sufficient sureties, payable to his adversary, in a penalty of three hundred dollars, conditioned to pay all costs that may be adjuded against him, which bond shall be given within twenty days after the rendition of the verdict, and 'may be approved by the justice. If the appeal be by the defendant, it shall not operate as a supersedeas, nor shall the right of the applicant to enter in and upon the land of the defendant and to appropriate the same to public use be delayed.”
By this section either of the parties has a right to appeal to the circuit court from the finding of the jury in the special court by executing a proper bond in the sum of $300. It is further provi ded in this section, if the appeal be by the defendant, that it shall not operate as a supersedeas, nor defeat the right of the applicant to enter the land of the defendant and appropriate the same to public use for which the land has been condemned. But if the applicant be dissatisfied with the finding of the jury in the special court, and desires to appeal, it is not provided in the statute, nor. contemplated by it, that it may execute a bond in the sum' of $300 and appeal to the circuit court and at the same time appropriate the land to the use de[346] sired. In other words, while it is provided by section 1696 that an appeal by the defendant under this section shall not defeat the right of the applicant to enter on the land, yet it is not said in the statute that if the applicant is dissatisfied with the finding of the jury, it may appeal by the execution of a bond, and proceed to appropriate land without first paying to the owner or owners the amount assessed by the verdict of the jury in the special court. This section of the statute, with reference to appeals and the right granted to the applicant, was only intended to prevent public works being delayed by the action of defendants. It only meant that when a special eminent domain court had condemned property and assessed damages, and that party whose property was taken was dissatisfied and desired an appeal, the work of the applicant should not be delayed on account of the appeal by the defendant, but it never was intended that if the applicant itself was dissatisfied with the award made by the jury, it could appeal, and thereby itself bring about the very delay which it was the purpose of the legislature to relieve it from, and at the same time proceed to appropriate the property, pending the appeal, without payment of the award to the owner, and, if it appropriate the land pending its own appeal, it shall be considered to have waived its right to appeal. The railroad company has undertaken the appeal in a manner not granted by the eminent domain law. The only way it could appeal from this award was to execute a bond in the sum of $300, as provided in section 1696, Code 1892, and stay off the land pending the appeal. It does not do this, but it executes the bond and additionally pays the award to the clerk and proceeds to appropriate the property. When it does this, and takes the property, and the award is accepted by the defendants, it has waived its right, and there can be no appeal. The payment of this money by it to the clerk is only provided for in one instance, and that not in reference to an appeal at all, but when it has accepted the verdict of the jury and desires [347] to appropriate tbe land, tbe defendant and bis attorney being absent from tbe court. Tbis is tbe only case wherein tbe statute authorizes tbe payment-of money during tbe progress of tbe proceedings. If an appeal be taken by tbe applicant under section 1696, Code 1892, it is not necessary to pay tbe award into court, but it is only necessary to execute tbe bond for $300; but applicant has no right pending tbe appeal to appropriate tbe land. When tbis award is paid to tbe clerk, and entry made on tbe land, and tbe defendants have accepted tbe award, it will be conclusively presumed that tbe applicant has abandoned its appeal, and tbe payment to tbe clerk was a payment under section 1693, Code 1892, to tbe owners of the land in settlement of tbe whole matter.
Tbe question in tbis case being one which is dependent solely on tbe constitution and statutes of tbis state, we have received little aid in reaching our conclusions from tbe investigation of outside authorities; but such assistance as we do get from them supports our conclusions.
Let the judgment be ajjirmed.