Mr. Justice Eakin
delivered the opinion of the court.
1. If the judgment entered by the court was the proper one, then this appeal is vain as to the alleged errors occurring at the trial. "We are therefore considering first the alleged error in rendering the judgment of dismissal. The question involved has been incidentally touched upon in former opinions of this [107]*107court, but not directly decided. The real controversy is as to what judgment may be entered in plaintiff’s favor from which it may appeal. Upon this matter we get but little aid from the decisions of other states, for the reason that there is very little similarity between their statutes on the. subject involved and ours* In Kansas, on an assessment of damages by a commission or by a jury, the court simply awards or adjudicates the damages so found as the amount which the plaintiff must pay before it is entitled to appropriate the property: St. Louis, L. & D. R. Co. v. Wilder, 17 Kan. 239; Florence, E. D. & W. R. Co. v. Lilley, 3 Kan. App. 588 (43 Pac. 857). And in Illinois the same procedure is followed: City of Bloomington v. Miller, 84 Ill. 621; Lewis, Eminent Domain (3 ed.), § 955. In the Colorado statute, after verdict, the judgment contemplated is: The court shall proceed to adjudge and make such order as to right and justice shall pertain, ordering that the plaintiff may enter upon such property and the use of the same upon payment of the full compensation as ascertained, which is considered a final determination, and from which either party may appeal as in ordinary cases; it being recognized in all of the cases that no formal judgment of condemnation can be rendered until the money is paid: Denver & N. O. R. R. Co. v. Jackson, 6 Colo. 340. Our own statute emphasizes that condition by Section 6866, L. O. L.: Oregonian Ry. Co. v. Hill, 9 Or. 377; Webb v. Nickerson, 11 Or. 382 (4 Pac. 1126). Section 6860 makes the proceedings in ordinary actions at law applicable in this proceeding, except as otherwise specially provided, thus supplementing this special statute in matters of procedure not covered. There may be other issues involved in a condemnation action than as to the amount of the compensation, such as the qualification and status of the petitioner [108]*108to exercise the power of eminent domain, the liability of the particular property to be condemned, and the necessity for the taking, as provided in Sections 6859 and 6864, L. O. L. These may all, or any of them, be made issues by the answer, be tried together, and be concluded by the verdict assessing the compensation: Webb v. Nickerson, 11 Or. 382 (4 Pac. 1126). And a proper appeal would, no doubt, bring up all of these questions for review in this court, if included in the verdict. We see by Section 6859 that, on the report of the commissioners appointed to determine the point and manner of a railroad crossing there provided for, their action must be confirmed by the court; that is, the commissioners cannot adjudicate the matters contained in their report. Their action must be confirmed by the action of the court. The same is true of the verdict of the jury. They can assess the amount of the compensation, but they cannot adjudicate it. It is binding on no one until adopted or confirmed by the court. The amount of compensation which plaintiff would be required to pay before he could take the property must be adjudicated as the amount defendant is entitled to.
2. Condemnation is an adversary proceeding and not an arbitration, and all proceedings must be judicial. Without the application of the provisions of Titles 1 and 2, L. O. L., as provided for in Section 6860, L. O. L., the whole condemnation statute would be very incomplete. Especially would there appear to be quite an omission in the proceedings between Sections 6865 and 6866. The verdict shall not only “be given,” but we must assume it shall be returned in a formal way into court and be confirmed or adjudicated as the award by the court of the amount of damages to be paid to the defendant by the plaintiff before he .can take the property. Such an order or adjudication is [109]*109contemplated in actions at law. Although in this proceeding the statute provides especially for the judgment of condemnation, such an adjudication of the award seems to be necessary to make it an orderly judicial proceeding, and as a protection to plaintiff, as the authority upon which the amount is to be paid by it, as evidence of what is condemned or included in the verdict, and by which the defendant shall be bound. The statutes of other states are different from ours as to these proceedings, yet the courts seem to consider such adjudication essential, and it is plain that it would in no way conflict with the terms of Section 6866, L. O. L., nor is it inconsistent with any part of the statute, being essential to complete the proceeding. It is expressly held in McCall v. Marion County, 43 Or. 541 (73 Pac. 1031, 75 Pac. 140), that an adjudication of the verdict should be made, where, in a county road proceeding, Mr. Justice Bean says:
“The proceedings for that purpose are by analogy the same, so far as it affects the form of judgment, as an action by any other corporation authorized to exercise the power. Its purpose is simply to ascertain and fix judicially the amount which the county should pay as a just compensation in order for it to be entitled to take the property for a county road, and no personal judgment should be entered against it for the amount of the award. The judgment against the county or other corporation in all condemnation proceedings is simply to adjudicate that the amount found due and assessed is a just compensation to be paid by the corporation for the property sought to be condemned, and should be so entered. ’ ’
And Mr. Chief Justice Lord, in Oregonian Ry. Co. v. Hill, 9 Or. 377, holds that the judgment of condemnation cannot be rendered until the money is paid, and seems to lay stress on the fact that no other judgment of condemnation can be rendered than that speci[110]*110fied in the statute, and to approve the statements quoted by him from Gear v. Dubuque & S. C. R. R. Co., 20 Iowa, 527 (89 Am. Dec. 550), and St. Louis, L. & D. R. Co. v. Wilder, 17 Kan. 239, where it is held that any judgment of condemnation beyond that authorized by the statute would be without authority, but approves a judgment assessing the amount of the damages: See, also, Lewis, Eminent Domain, 3d ed., § 784. In Oregon R. & N. Co. v. Eastlack, 54 Or. 196 (102 Pac. 1011, 20 Ann. Cas. 695, note), a condemnation case upon a verdict in favor of the petitioner, a judgment similar in form and effect to the one requested in this case was entered, and the plaintiff appealed. In this court the defendant moved to dismiss the appeal on the ground that the judgment was not final, and that it was void as not being authorized by the statute; but this court, Justice .Slater writing the opinion, declined to pass upon the sufficiency of the form of judgment, stating that, if it was void, nevertheless it was appeal-able, and held that the judgment was final as to the subject of litigation, namely, the damages. The question was raised in the Oregon E. R. Co. v. Terwilliger Land Co., 51 Or. 107 (93 Pac.
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Mr. Justice Eakin
delivered the opinion of the court.
1. If the judgment entered by the court was the proper one, then this appeal is vain as to the alleged errors occurring at the trial. "We are therefore considering first the alleged error in rendering the judgment of dismissal. The question involved has been incidentally touched upon in former opinions of this [107]*107court, but not directly decided. The real controversy is as to what judgment may be entered in plaintiff’s favor from which it may appeal. Upon this matter we get but little aid from the decisions of other states, for the reason that there is very little similarity between their statutes on the. subject involved and ours* In Kansas, on an assessment of damages by a commission or by a jury, the court simply awards or adjudicates the damages so found as the amount which the plaintiff must pay before it is entitled to appropriate the property: St. Louis, L. & D. R. Co. v. Wilder, 17 Kan. 239; Florence, E. D. & W. R. Co. v. Lilley, 3 Kan. App. 588 (43 Pac. 857). And in Illinois the same procedure is followed: City of Bloomington v. Miller, 84 Ill. 621; Lewis, Eminent Domain (3 ed.), § 955. In the Colorado statute, after verdict, the judgment contemplated is: The court shall proceed to adjudge and make such order as to right and justice shall pertain, ordering that the plaintiff may enter upon such property and the use of the same upon payment of the full compensation as ascertained, which is considered a final determination, and from which either party may appeal as in ordinary cases; it being recognized in all of the cases that no formal judgment of condemnation can be rendered until the money is paid: Denver & N. O. R. R. Co. v. Jackson, 6 Colo. 340. Our own statute emphasizes that condition by Section 6866, L. O. L.: Oregonian Ry. Co. v. Hill, 9 Or. 377; Webb v. Nickerson, 11 Or. 382 (4 Pac. 1126). Section 6860 makes the proceedings in ordinary actions at law applicable in this proceeding, except as otherwise specially provided, thus supplementing this special statute in matters of procedure not covered. There may be other issues involved in a condemnation action than as to the amount of the compensation, such as the qualification and status of the petitioner [108]*108to exercise the power of eminent domain, the liability of the particular property to be condemned, and the necessity for the taking, as provided in Sections 6859 and 6864, L. O. L. These may all, or any of them, be made issues by the answer, be tried together, and be concluded by the verdict assessing the compensation: Webb v. Nickerson, 11 Or. 382 (4 Pac. 1126). And a proper appeal would, no doubt, bring up all of these questions for review in this court, if included in the verdict. We see by Section 6859 that, on the report of the commissioners appointed to determine the point and manner of a railroad crossing there provided for, their action must be confirmed by the court; that is, the commissioners cannot adjudicate the matters contained in their report. Their action must be confirmed by the action of the court. The same is true of the verdict of the jury. They can assess the amount of the compensation, but they cannot adjudicate it. It is binding on no one until adopted or confirmed by the court. The amount of compensation which plaintiff would be required to pay before he could take the property must be adjudicated as the amount defendant is entitled to.
2. Condemnation is an adversary proceeding and not an arbitration, and all proceedings must be judicial. Without the application of the provisions of Titles 1 and 2, L. O. L., as provided for in Section 6860, L. O. L., the whole condemnation statute would be very incomplete. Especially would there appear to be quite an omission in the proceedings between Sections 6865 and 6866. The verdict shall not only “be given,” but we must assume it shall be returned in a formal way into court and be confirmed or adjudicated as the award by the court of the amount of damages to be paid to the defendant by the plaintiff before he .can take the property. Such an order or adjudication is [109]*109contemplated in actions at law. Although in this proceeding the statute provides especially for the judgment of condemnation, such an adjudication of the award seems to be necessary to make it an orderly judicial proceeding, and as a protection to plaintiff, as the authority upon which the amount is to be paid by it, as evidence of what is condemned or included in the verdict, and by which the defendant shall be bound. The statutes of other states are different from ours as to these proceedings, yet the courts seem to consider such adjudication essential, and it is plain that it would in no way conflict with the terms of Section 6866, L. O. L., nor is it inconsistent with any part of the statute, being essential to complete the proceeding. It is expressly held in McCall v. Marion County, 43 Or. 541 (73 Pac. 1031, 75 Pac. 140), that an adjudication of the verdict should be made, where, in a county road proceeding, Mr. Justice Bean says:
“The proceedings for that purpose are by analogy the same, so far as it affects the form of judgment, as an action by any other corporation authorized to exercise the power. Its purpose is simply to ascertain and fix judicially the amount which the county should pay as a just compensation in order for it to be entitled to take the property for a county road, and no personal judgment should be entered against it for the amount of the award. The judgment against the county or other corporation in all condemnation proceedings is simply to adjudicate that the amount found due and assessed is a just compensation to be paid by the corporation for the property sought to be condemned, and should be so entered. ’ ’
And Mr. Chief Justice Lord, in Oregonian Ry. Co. v. Hill, 9 Or. 377, holds that the judgment of condemnation cannot be rendered until the money is paid, and seems to lay stress on the fact that no other judgment of condemnation can be rendered than that speci[110]*110fied in the statute, and to approve the statements quoted by him from Gear v. Dubuque & S. C. R. R. Co., 20 Iowa, 527 (89 Am. Dec. 550), and St. Louis, L. & D. R. Co. v. Wilder, 17 Kan. 239, where it is held that any judgment of condemnation beyond that authorized by the statute would be without authority, but approves a judgment assessing the amount of the damages: See, also, Lewis, Eminent Domain, 3d ed., § 784. In Oregon R. & N. Co. v. Eastlack, 54 Or. 196 (102 Pac. 1011, 20 Ann. Cas. 695, note), a condemnation case upon a verdict in favor of the petitioner, a judgment similar in form and effect to the one requested in this case was entered, and the plaintiff appealed. In this court the defendant moved to dismiss the appeal on the ground that the judgment was not final, and that it was void as not being authorized by the statute; but this court, Justice .Slater writing the opinion, declined to pass upon the sufficiency of the form of judgment, stating that, if it was void, nevertheless it was appeal-able, and held that the judgment was final as to the subject of litigation, namely, the damages. The question was raised in the Oregon E. R. Co. v. Terwilliger Land Co., 51 Or. 107 (93 Pac. 334, 930), in which the plaintiff, deeming the assessment excessive, and with a view to appeal the case, paid into court the amount * of the verdict, and appealed, the question submitted being as to plaintiff’s right of appeal from such a judgment. Justice Moore, who wrote the opinion, held that the payment of the award, and the taking possession of the property, was a voluntary acceptance of the benefit of the judgment and a waiver of the right of appeal. Section 6867, L. O. L., makes positive provision that either party shall have the right of appeal. It may be possible that on the entry of the judgment provided for in Section 6866, L. O. L., in favor of the plaintiff that it could pay the money into court and [111]*111then appeal; but this seems very doubtful. The statute of Colorado provides for such a proceeding for the purposes of the appeal; but it provides that the money shall remain on deposit pending the appeal, and that the defendant cannot withdraw it except by giving security for its return in case of reversal. Section 6866, L. O. L., seems to contemplate that upon payment the money becomes the property of the defendant and the land the property of plaintiff. This is the effect of the reasoning of the court in City of Chicago v. Barbian, 80 Ill. 482.
3. The law reserves to the petitioner the right to abandon the proceeding at any time prior to the payment of the award, but quaere whether it has that right after the money is paid. It is held in Denver & N. O. R. R. Co. v. Lamborn, 8 Colo. 380 (8 Pac. 582), that the plaintiff loses its right to abandon the proceeding when the land owner acquires a vested right to the compensation, which is upon payment by the plaintiff: See, also, 38 Cyc. 176. The right of appeal being guaranteed to the plaintiff is an additional reason why the statute must be deemed to contemplate a formal adjudication of the amount of the damages and of the other issues that may be involved therein, from which an appeal will lie. Therefore we conclude that the form of judgment that should have been entered upon the return into court of the verdict of the jury should have been one adjudging the award of damages found by the jury, if the court deems the verdict sufficient, as the amount of just compensation awarded to defendant to be paid by the petitioner for the property sought to be condemned, and that thereafter, when the petitioner shall have paid the money into court, the judgment provided for by Section 6866 shall be entered. The court erred in dismissing the action, and the case is before us on the merits.