By the Court,
DixoN, C. J.
We do not feel called upon in this case to enter into a discussion of tbe question, as to tbe time when tbe owner of private property taken for public [220] use shall be compensated therefor, to which counsel devoted much attention, and the repeated and thorough examinations of which by the courts of our sister states, have produced a variety of conflicting and irreconcilable opinions and decisions, for the reason that we regard it as substantially settled, in a manner entirely in harmony with our own views, by the former adjudications of this court. In the case of Norton vs. Peck, 3 Wis., 714, it was held that the officers of a town could not enter upon and appropriate to public use the land of an individual, required for a highway, unless compensation therefor was first made, or unless proper proceedings were first taken by the authorities of the town to ascertain its value, so that he could receive it when called for. In that opinion the court say, that in the case of land taken by the authorities of a town, they do not decide that actual prepayment of the damages in money is necessary, for the reason that the entire taxable property of the town constitutes an adequate fund to which the owner may without risk of loss resort to compel payment. In the subsequent case of Shepardson vs. R. R. Co., 6 Wis., 605, the distinction between public or municipal corporations, and corporations merely private, as instruments in the hands of the legislature by which it may exercise the right of eminent domain, in respect to the fund to which the owner may resort, is particularly noted, and it is observed that although in theory the property in both cases is taken by the public, yet in the former case all the taxable property in the town is pledged for the payment of the value, while in the latter, the uncertain and oftentimes worthless responsibility of the corporations can only be looked to. In speaking of the case of Norton vs. Peek, the late chief justice says: “As in that case we held it indispensable that the compensation should be made for the property taken, without driving the owner to a suit at law to, ascertain its value, or at least that the town authorities should proceed to ascertain the value of the land taken, before appropriating it to the use of the public, so that the owners should be able to recover its value from the'property of the town, we must in this case hold that the railroad company cannot enter upon the plaintiff’s land and apply it to [221] tbe use of tbe road, without making compensation and witb-out taking any measures to ascertain tbe damages which plaintiff has sustained by their acts.” In the still later case of Robbins vs. R. R. Co., 6 Wis., 636, much stronger language was used by the court. It was said that when the government “takes land, by virtue of its sovereign right and power, it is bound by tbe constitution to pay the value thereof, at the time it is taken.” Setting to tbe one side the adjudications of this court upon the mill dam law, so called, which was sustained contrary to the individual convictions of all its present members, on tbe ground that the earlier decisions upon it had made it a rule of property which could not, with a due regard to individual interests, be departed from, we are of opinion that the cases above referred to conclusively establish that one of two things must invariably be done before tbe public can, against tbe will of tbe owner, acquire the right to enter upon and permanently occupy his land, which may be needed for public uses.
1. The value of the property to be taken must be ascertained by some legal and proper proceeding, and be paid; or,
2. If the value thus ascertained be not paid to, or received by the owner, an adequate and safe fund must be provided, from which he may at some future time be compensated.
These, it seems to us, are the results of those cases and they are such as we should be unwilling to depart from. The latter proposition, in the case of a private corporation, like a rail road company, would undoubtedly require it to tender or offer in money the amount of the ascertained damages, or compensation with expenses, if any, to the owner or person interested, and if, on the ground of an intended appeal or otherwise, he should refuse to receive it, the company would be required to deposit the same with some proper officer or person, to be kept good for the owner until the end of the litigation, or until such time as he should apply for and signify his readiness to accept it.
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By the Court,
DixoN, C. J.
We do not feel called upon in this case to enter into a discussion of tbe question, as to tbe time when tbe owner of private property taken for public [220] use shall be compensated therefor, to which counsel devoted much attention, and the repeated and thorough examinations of which by the courts of our sister states, have produced a variety of conflicting and irreconcilable opinions and decisions, for the reason that we regard it as substantially settled, in a manner entirely in harmony with our own views, by the former adjudications of this court. In the case of Norton vs. Peck, 3 Wis., 714, it was held that the officers of a town could not enter upon and appropriate to public use the land of an individual, required for a highway, unless compensation therefor was first made, or unless proper proceedings were first taken by the authorities of the town to ascertain its value, so that he could receive it when called for. In that opinion the court say, that in the case of land taken by the authorities of a town, they do not decide that actual prepayment of the damages in money is necessary, for the reason that the entire taxable property of the town constitutes an adequate fund to which the owner may without risk of loss resort to compel payment. In the subsequent case of Shepardson vs. R. R. Co., 6 Wis., 605, the distinction between public or municipal corporations, and corporations merely private, as instruments in the hands of the legislature by which it may exercise the right of eminent domain, in respect to the fund to which the owner may resort, is particularly noted, and it is observed that although in theory the property in both cases is taken by the public, yet in the former case all the taxable property in the town is pledged for the payment of the value, while in the latter, the uncertain and oftentimes worthless responsibility of the corporations can only be looked to. In speaking of the case of Norton vs. Peek, the late chief justice says: “As in that case we held it indispensable that the compensation should be made for the property taken, without driving the owner to a suit at law to, ascertain its value, or at least that the town authorities should proceed to ascertain the value of the land taken, before appropriating it to the use of the public, so that the owners should be able to recover its value from the'property of the town, we must in this case hold that the railroad company cannot enter upon the plaintiff’s land and apply it to [221] tbe use of tbe road, without making compensation and witb-out taking any measures to ascertain tbe damages which plaintiff has sustained by their acts.” In the still later case of Robbins vs. R. R. Co., 6 Wis., 636, much stronger language was used by the court. It was said that when the government “takes land, by virtue of its sovereign right and power, it is bound by tbe constitution to pay the value thereof, at the time it is taken.” Setting to tbe one side the adjudications of this court upon the mill dam law, so called, which was sustained contrary to the individual convictions of all its present members, on tbe ground that the earlier decisions upon it had made it a rule of property which could not, with a due regard to individual interests, be departed from, we are of opinion that the cases above referred to conclusively establish that one of two things must invariably be done before tbe public can, against tbe will of tbe owner, acquire the right to enter upon and permanently occupy his land, which may be needed for public uses.
1. The value of the property to be taken must be ascertained by some legal and proper proceeding, and be paid; or,
2. If the value thus ascertained be not paid to, or received by the owner, an adequate and safe fund must be provided, from which he may at some future time be compensated.
These, it seems to us, are the results of those cases and they are such as we should be unwilling to depart from. The latter proposition, in the case of a private corporation, like a rail road company, would undoubtedly require it to tender or offer in money the amount of the ascertained damages, or compensation with expenses, if any, to the owner or person interested, and if, on the ground of an intended appeal or otherwise, he should refuse to receive it, the company would be required to deposit the same with some proper officer or person, to be kept good for the owner until the end of the litigation, or until such time as he should apply for and signify his readiness to accept it.
With these rules, as to the requirements of the constitution, already fixed, it remains only -to be determined whether the statute under which the railroad company proceeded in [222] this case, and the steps taken by it to acquire the right to the permanent use and occupation- of the plaintiffs’ land, are in compliance with them. The statute, section 2, chapter 168, laws of 1859, provides: “ The company, by its agent, shall first offer to pay to the owner or owners, guardian of the owner or agent of the owner or owners, or of any other person having any interest in such lands (as the case may be) if resident of this state, such sum as such agent and two disinterested freeholders of the county where the lands are situated, shall, on oath, and in writing, swear is just compensation for such lands and damages, before seizing and appropriating any such lands, in all cases where lands have not already been appropriated.’ Having complied with this provision, the company attempted to take permanent possession of, and to build and construct its road through the land in question. To prevent its so doing, the plaintiffs, who refused to receive the money offered, commenced this action against the defendants, who were the agents or contractors having charge of the work, and procured therein a preliminary injunction, which, on motion of the defendants before the court at term, was dissolved. From the order dissolving the injunction this appeal is taken. It must be very evident to every impartial mind, that such a proceeding to ascertain the value of the land to be taken, and to determine the damages which the owner shall be entitled to receive, if sustained, would be a mere evasion of the provisions of the constitution, as heretofore expounded by this court. It is open to the grossest partiality and abuse. It is ex parte and secret. The board of appraisers who are to sit in judgment on the rights of the parties, are chosen by one of them, in the absence and without the knowledge or consent of the other. One of its members is the agent and employee of the company, through whom it exercises its power of choosing the other two. They act without evidence, and their sessions are not public. As a proceeding to ascertain and determine the rights of the land owner, it is a mere mockery, equivalent to making one of the parties to a controversy a judge or trier between himself and his adversary, and ordaining that the trial shall take place in the ab[223] sence and without the knowledge of the latter, or equivalent to saying that the railroad company may enter into the manent and peaceful enjoyment of the land without any compensation whatever. No one will say that such a proceeding is a compliance with the constitution, or that it can be tolerated. The commissioners to value the land and ascertain and determine the damages, as contemplated by that instrument, are to be fair and impartial men, indifferently chosen or appointed between the parties, and their investigation is to be open and known to both, giving to each an opportunity to appear before them and make such statements and offer such proofs as may be necessary and proper. Until such a proceeding has been had and the corporation have complied with their award or decision in the manner above indicated, it has no right to the permanent occupancy of the land, for the purpose of constructing its road. It may also be observed th,at no provision is made for - depositing or keeping good the money offered to the owner pursuant to such unjust and anomalous assessment. To the question as to whether a writ of injunction is a proper remedy in a case like the present, in addition to the authorities cited by the appellants’ counsel, Shepardson vs. R. R. Co., supra, is directly in point. In that ease an injunctional order restraining the company from the occupancy of the plaintiff’s land, and the prosecution of the work in constructing their road over th¿ same, was dissolved by the judge at term, and on appeal to this court, the order dissolving the injunction was reversed.
The order of the circuit court must be reversed, and the case remanded for farther proceedings.