BBICKELL, C. J.
This was a proceeding instituted by the appellee, a corporation created under the laws of this State, having authority to construct and maintain a railroad from New Orleans to Selma, to ascertain the compensation to be paid the appellant, for lands of which she was the owner, which had been taken and appropriated in the construction of the road. The appellee entered and constructed its road on the lands in [230]*2301870, and lias since continued in the use thereof. The several assignments of error, relating exclusively to the rejection of evidence, raise but a single question, as is recognized by counsel : whether the appellant was entitled to the value of the lands as of the day when the proceeding was instituted (May 4th, 1880), enhanced by the value of the rails, ties, trestles, and other structures, placed thereon by the appellee.
It is not denied that the appellee was clothed with power to acquire the land for the purpose of constructing a railroad, by agreement with the owner, or, in the absence of agreement, by appropriate proceedings for its condemnation. It has long been settled in this State, that the General Assembly may confer on corporations, created for the construction of railroads, the right to take lands necessary for the use and maintenance of the road, upon making to the owner just compensation. Aldridge v. T., C. & D. R. R. Co., 2 St. Port. 199; Davis v. T., C. & D. R. R. Co., 4 St. & Port. 421; Ala. & Florida R. R. Co. v. Kenney, 39 Ala. 307. Whether it was essential to the validity of a law conferring this right on such a corporation, that it should require payment of the compensation to precede, or to be concurrent with the taking and appropriation of the land, or whether all the demands of the constitution were not satisfied, if adequate remedies were provided by which the owner could secure the compensation, was an unsettled question..—Aldridge v. T., C. & D. R. R. Co., supra; Sadler v. Langham, 34 Ala. 311. The constitution of 1868 (Art. xm, § 5) required, that the compensation should be paid before, or at the time of the taking and appropriation; and a provision • similar in substance and effect is incorporated in the present constitution.—Art. xiv, § 7; Art. i, § 24.
The appellee, having entered upon the lazzds without the consezit of the owner, without instituting the necessary proceedings for the ascertainment of the compezisation to which the owzzer was entitled, and its actual payment in money, as z-e-quiz’ed by the cozistitution, was a trespasser. The owner could have szzpported an action of tz’espass against it, or an action of ejectment, and could have en joined it by bill in equity from the constzTiction of its road, until the compensatiozi was ascertained and paid.—Pierce on Railroads, 166-7; N. O. & Selma R. R. Co. & Imm. Asso. v. Jones, at last term.
It is, as insisted .by the counsel for the appellant, a maxizn of the common law, that every thing affixed to lands become a part of the freehold, subject to all its incidents and properties, and can not be dissevered, or converted into personal property, without the act or consent of the proprietor of the lands. Tne maxim was never inflexible in its operation, and, as far back as it may be traced, was subject to exceptions.—Van Ness v. [231]*231Pacard, 2 Peters, 137; N. C. R. R. Co. v. Canton, 30 Md. 347. Tliese exceptions have multiplied, with the increase in the importance and value of personal property, and the varied necessities and exigencies of society. It is, nevertheless, true generally, that if there is a tortious entry upon lands, and the tortfeasor makes improvements npon them, annexed to the soil, for the better use and enjoyment- of the lands, such improvements become a part of the realty ; all property in them is vested in the proprietor of the soil, who is under no legal or equitable obligation to make compensation for them, or to suffer them dissevered and removed.—2 Kent, 338. It was the fraud, or the folly of the tortfeasor, to build, to plant, or to sow, on the lands of another, without his consent. — Amos & Ferard on Fixtures, 10.
This maxim seems to us incapable of any just application to parties standing in the relation of these parties, or to a proceeding of this character; and it must not be overlooked, that they have corresponding rights and remedies. In this relation, they are placed by law. The rights of each party, the law distinctly defines; and the remedies each must pursue, to secure and enforce their rights, are clearly prescribed. It was the right of the appellee to acquire the lands for the use of the road ; a public, not a private use. Appropriate proceedings for its acquisition, if from any cause it could not be acquired by contract with the owner, the law prescribes. Just compensation for the land at the tíme of its taking, paid before or concurrently with its appropriation, was the right of the appellant. If there was an entry upon, and appropriation of the lands, without the consent of the owner, and without having the compensation ascertained, and making payment of it, there were remedies to which he could have resorted, protecting himself, regaining his possession, and compelling the ascertainment and payment of the compensation. If he is negligent— if he stands by in silence, suffering the wrongful entry, or continuance of possession under it, the construction of costly improvements, not necessary to the enjoyment of the freehold, inconvenient to his use and occupation, valuable to him only because he may dissever them, converting them again into personal property, and valuable only to the party making them for the uses to which they are dedicated — there is but little of equity in a claim that the measure of his compensation shall be increased by the value of the improvements, or that the time at which such compensation is to be estimated shall be varied. Nemo debet loaupletari ex alterius ineom/modo, is a maxim of the common law, of as much force, though it may not be of as general application, as the maxim, Quiequid plantattvr solo, solo cedit.
[232]*232The duty rested upon the appellee, before the taking and appropriation of the lands, to have caused, in the appointed mode, an ascertainment of the compensation to which the owner was entitled, and to have made payment of the compensation. Neglecting this duty, the entry upon and possession of the lands was wrongful — no title to them was acquired, and the title of the owner was not divested. The neglect of the duty, -the wrongful entry and possession, does not preclude the appellee from resorting subsequently to the appropriate proceedings for the acquisition of the lands, and, of consequence, availing itself of all the structures it may have placed thereon.—Justice v. N. V. R. R. Co., 87 Penn. St. 28; Secombe v. R. R. Co., 23 Wall. 108. Though the appellee was a trespasser, by reason of the neglect to pursue the proper remedy for acquiring the lands— acquiring them without the consent of the owner' — there is in the right continuing in him to pursue the remedy, rendering the possession rightful, and by which title may be acquired, a plain distinction between the appellee and a common trespasser. As against such trespasser, the proprietor can keep the lands, and, keeping them, hold the improvements he may have annexed to the soil. No remedy is given the trespasser, by which he may acquire the use and enjoyment of, or title to the lands.
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BBICKELL, C. J.
This was a proceeding instituted by the appellee, a corporation created under the laws of this State, having authority to construct and maintain a railroad from New Orleans to Selma, to ascertain the compensation to be paid the appellant, for lands of which she was the owner, which had been taken and appropriated in the construction of the road. The appellee entered and constructed its road on the lands in [230]*2301870, and lias since continued in the use thereof. The several assignments of error, relating exclusively to the rejection of evidence, raise but a single question, as is recognized by counsel : whether the appellant was entitled to the value of the lands as of the day when the proceeding was instituted (May 4th, 1880), enhanced by the value of the rails, ties, trestles, and other structures, placed thereon by the appellee.
It is not denied that the appellee was clothed with power to acquire the land for the purpose of constructing a railroad, by agreement with the owner, or, in the absence of agreement, by appropriate proceedings for its condemnation. It has long been settled in this State, that the General Assembly may confer on corporations, created for the construction of railroads, the right to take lands necessary for the use and maintenance of the road, upon making to the owner just compensation. Aldridge v. T., C. & D. R. R. Co., 2 St. Port. 199; Davis v. T., C. & D. R. R. Co., 4 St. & Port. 421; Ala. & Florida R. R. Co. v. Kenney, 39 Ala. 307. Whether it was essential to the validity of a law conferring this right on such a corporation, that it should require payment of the compensation to precede, or to be concurrent with the taking and appropriation of the land, or whether all the demands of the constitution were not satisfied, if adequate remedies were provided by which the owner could secure the compensation, was an unsettled question..—Aldridge v. T., C. & D. R. R. Co., supra; Sadler v. Langham, 34 Ala. 311. The constitution of 1868 (Art. xm, § 5) required, that the compensation should be paid before, or at the time of the taking and appropriation; and a provision • similar in substance and effect is incorporated in the present constitution.—Art. xiv, § 7; Art. i, § 24.
The appellee, having entered upon the lazzds without the consezit of the owner, without instituting the necessary proceedings for the ascertainment of the compezisation to which the owzzer was entitled, and its actual payment in money, as z-e-quiz’ed by the cozistitution, was a trespasser. The owner could have szzpported an action of tz’espass against it, or an action of ejectment, and could have en joined it by bill in equity from the constzTiction of its road, until the compensatiozi was ascertained and paid.—Pierce on Railroads, 166-7; N. O. & Selma R. R. Co. & Imm. Asso. v. Jones, at last term.
It is, as insisted .by the counsel for the appellant, a maxizn of the common law, that every thing affixed to lands become a part of the freehold, subject to all its incidents and properties, and can not be dissevered, or converted into personal property, without the act or consent of the proprietor of the lands. Tne maxim was never inflexible in its operation, and, as far back as it may be traced, was subject to exceptions.—Van Ness v. [231]*231Pacard, 2 Peters, 137; N. C. R. R. Co. v. Canton, 30 Md. 347. Tliese exceptions have multiplied, with the increase in the importance and value of personal property, and the varied necessities and exigencies of society. It is, nevertheless, true generally, that if there is a tortious entry upon lands, and the tortfeasor makes improvements npon them, annexed to the soil, for the better use and enjoyment- of the lands, such improvements become a part of the realty ; all property in them is vested in the proprietor of the soil, who is under no legal or equitable obligation to make compensation for them, or to suffer them dissevered and removed.—2 Kent, 338. It was the fraud, or the folly of the tortfeasor, to build, to plant, or to sow, on the lands of another, without his consent. — Amos & Ferard on Fixtures, 10.
This maxim seems to us incapable of any just application to parties standing in the relation of these parties, or to a proceeding of this character; and it must not be overlooked, that they have corresponding rights and remedies. In this relation, they are placed by law. The rights of each party, the law distinctly defines; and the remedies each must pursue, to secure and enforce their rights, are clearly prescribed. It was the right of the appellee to acquire the lands for the use of the road ; a public, not a private use. Appropriate proceedings for its acquisition, if from any cause it could not be acquired by contract with the owner, the law prescribes. Just compensation for the land at the tíme of its taking, paid before or concurrently with its appropriation, was the right of the appellant. If there was an entry upon, and appropriation of the lands, without the consent of the owner, and without having the compensation ascertained, and making payment of it, there were remedies to which he could have resorted, protecting himself, regaining his possession, and compelling the ascertainment and payment of the compensation. If he is negligent— if he stands by in silence, suffering the wrongful entry, or continuance of possession under it, the construction of costly improvements, not necessary to the enjoyment of the freehold, inconvenient to his use and occupation, valuable to him only because he may dissever them, converting them again into personal property, and valuable only to the party making them for the uses to which they are dedicated — there is but little of equity in a claim that the measure of his compensation shall be increased by the value of the improvements, or that the time at which such compensation is to be estimated shall be varied. Nemo debet loaupletari ex alterius ineom/modo, is a maxim of the common law, of as much force, though it may not be of as general application, as the maxim, Quiequid plantattvr solo, solo cedit.
[232]*232The duty rested upon the appellee, before the taking and appropriation of the lands, to have caused, in the appointed mode, an ascertainment of the compensation to which the owner was entitled, and to have made payment of the compensation. Neglecting this duty, the entry upon and possession of the lands was wrongful — no title to them was acquired, and the title of the owner was not divested. The neglect of the duty, -the wrongful entry and possession, does not preclude the appellee from resorting subsequently to the appropriate proceedings for the acquisition of the lands, and, of consequence, availing itself of all the structures it may have placed thereon.—Justice v. N. V. R. R. Co., 87 Penn. St. 28; Secombe v. R. R. Co., 23 Wall. 108. Though the appellee was a trespasser, by reason of the neglect to pursue the proper remedy for acquiring the lands— acquiring them without the consent of the owner' — there is in the right continuing in him to pursue the remedy, rendering the possession rightful, and by which title may be acquired, a plain distinction between the appellee and a common trespasser. As against such trespasser, the proprietor can keep the lands, and, keeping them, hold the improvements he may have annexed to the soil. No remedy is given the trespasser, by which he may acquire the use and enjoyment of, or title to the lands. There is, also, another distinguishing fact; the structures of the appellee were dedicated, not to the use and enjoyment of the freehold, but to public uses, which are the consideration for the grant to the appellee of corporate franchises, and of the right, in the exercise of these franchises, to take and appropriate private property.—Justice v. N. V. R. R. Co., supra; N. C. R. R. Co. v. Camton, supra; Morgan v. C. & N. R. R. Co., 39 Mich. 575; Lyon v. G. B. & M. R. Co., 42 Wisc 538. These elements of the casé distinguish it from that of the trespasser entering upon lands, fixing chattels to the freehold for its use and enjoyment, which he must intend to convert into realty, and which, following the title to the soil, as one of its incidents, pass to the proprietor.
In this proceeding, it is only just compensation which may be awarded to the owner of the lands. This includes not only the value of'the land which may be taken, but the injury resulting to the remaining lands of the proprietor.—Ala. & F. R. R. Co. v. Burkett, 42 Ala. 83. If these, in consequence of the taking, are lessened in value, the diminution is a part of the loss, of the injury, the proprietor has sustained.—Cooley Const. Lim. 705-12. “ The question in these cases,” says Judge Cooley, “ relates, first, to the value of the lands appropriated.; which is to be assessed with reference to 'what it is worth for sale, in view of the uses to which it may be applied, and not simply in reference to its productiveness to the owner in the [233]*233condition in which he sees fit to leave it. Second, if less than the whole estate is taken, then there is further to be considered, how much the portion not taken is increased or diminished in value in consequence of the appropriation.” Fair, reasonable, adequate, just compensation for the loss and injury he may sustain, the constitution guarantees to the citizen whose property is taken- for public uses. When this is afforded, the purposes of right, and of the constitution, are satisfied. It is not intended that compensation shall extend beyond the loss and injury, including that which the land-owner had not when the property was taken, but which is an incident of the appropriation, and essential to the uses for which the law confers the right of taking the property.—Justice v. N. V. R. R. Co., 87 Penn., supra; N. C. R. R. Co. v. Canton, supra; Lyon v. G. B. & M. R. R. Co., supra; Morgan v. C. & N. R. R. Co., supra; N. H. C. R. R. Co. v. Booream, 28 N. J. Eq. 450.
The compensation is ■ assessed, or ascertained, as of the time when the land .is taken. Until the taking, whatever may be the other rights of the proprietor, the right to just compensation is not complete. What shall constitute the taking, may vary in different jurisdictions, and may depend, when proceedings for condemnation are resorted to, before an actual appropriation of the land, upon the stage of the proceedings. Where, as in this case, such proceedings are not resorted to, the entry upon the lands, disturbing the possession of the proprietor, followed by the location of the road, and operations for its construction, is the time of taking. These are acts in the exercise of the right of eminent domain, and the right of the proprietor to compensation for the loss and injury sustained by the exercise of the right is then complete. — Pierce on [Railroads, 209. It is obvious, no other period of time can be adopted, without injustice to the land-owner, or to the corporation taking the. land. If 'the period of condemnation, or of the commencement of proceedings for condemnation, in a case like the present, was adopted, the consequence would be, that the landowner could not claim damages compensatory of the injury to his contiguous lands. Their value as of either period, after it hasbeen diminished by the construction of the road, the market value, would be the measure of the compensation to which he would be entitled.. Past injuries to them could not, in this proceeding, be considered. It is not a remedy for the recovery of damages for such injuries.—Morgan v. C. & N. R. R. Co., supra. In N. H. C. R. R. Co. v. Booream, supra, it is said by the Court of Appeals, of New Jersey: “Suppose the land was valuable for building, or farming purposes, and, by reason of cuts and embankments made by the company, it was ren[234]*234dered intrinsically worthless; it would be unjust to compel the owner to accept as compensation its intrinsic valué in that condition. -That result would necessarily be reached, if the valuation of the land was, under such circumstances, to be made as of the time when the condemnation was effected.”
The value of the land when taken, before the construction of the road, and before any injury to the land taken resulting from construction, and the injury, the diminution in value of the contiguous lands, is the true and just measure of compensation.—Lyon v. G. B. & M. R. R. Co., supra. Delays in condemnation may occur, from many causes, and may result from the mere negligence of the corporation. The land-owner can always quicken it into diligence, and prevent any other loss or injury, than that for which compensation must be paid. Such delays, it may be, would often End encouragement, if the period of condemnation was fixed as the time of assessing the compensation, when by the taking the value of the land may have been, if not destroyed, materially reduced. On the other hand, the delay of the land-owner to compel compensation would be encouraged, if he could claim tiiat it should include the value of the structures which have been erected on the lands. In neither claim is there right or justice, and neither comes within the letter or spirit of just compensation, which the constitution requires shall be made before or concurrently with the taking of the land. The land-owner is entitled to the value of the lauds at the time of the taking and appropriation, whether the damages are assessed, as they should be, by condemnation proceedings, before the entry for .the purposes of constructing the road, or subsequently, after there has been an actual taking and appropriation, without such proceedings, and without mairing payment of compensation. So, he is entitled, as of the same time, to the injury to his contiguous lands. It ■is this measure of compensation the constitution requires shall be paid before or concurrently with the taking. Interest upon these sums should, generally, in a case like the present, be computed. The liability for interest is not now presented, and it may be that there are circumstances connected with this case which would render the payment of interest inequitable. More than this measure of compensation the land-owner is not entitled to receive. When it is paid, the land, with all the structures thereon placed, will pass to the appellee.
There is no error in the rulings of' the City Court, and the judgment is affirmed.