on the twelfth day of June 1880, the property was not subject to relocation, and that the attempted relocation thereof by appellants was void. The judgment is affirmed.

(8 Colo. 380).

DENVER & N. O. R. Co. v. LAMBORN and others.1

October Term, 1885.

1. EMINENT DOMAIN-CONDEMNATION PROCEEDINGS-RIGHT TO ABANDON. Under the statute, (section 242,) the right or privilege to abandon proceedings to condemn land on payment of costs and accrued damages is lost whenever the land-owner acquires a vested right to the compensation awarded.

2. SAME-AWARD-WHEN VESTED INTEREST IN, ATTACHES.

The land-owner's interest in the award made cannot be said to be vested until the payment or deposit in the manner provided by law of the sum awarded.

3. SAME-ABANDONMENT.

Proceedings to condemn land are special proceedings, differing widely from those of an ordinary civil action, governed by dissimilar rules of pleading and practice; and abandonment in one is not analagous to nonsuit in the other. Pollard v. Moore, 51 N. H. 188, followed.

4. SAME-APPEAL.

An appeal from the award, and the overruling of a motion to set the same aside, does not deprive the party seeking to condemn the land from abandoning the proceedings, even after decision of supreme court. Denver & N. 0. R. Co. v. Jackson, 6 Colo. 340, explained and limited.

5. SAME-PARTIAL ABANDONMENT.

Where a railroad seeks to condemn lands for depot, engine-house, and ma chine-shops, and right of way, it may, after the award, abandon the proceedings as to all except the right of way, if it choose so to do; but in that case there will have to be a new award of damages resulting from the right of way alone.

Error to district court, Pueblo county.

Wells, Smith & Macon, for plaintiff in error.

John M. Waldron, for defendants in error.

HELM, J. Counsel in this case elaborately and earnestly argue several important questions touching the rights and powers conferred by our laws upon the subject of eminent domain. The graver of these questions will be briefly considered:

1. At what stage of condemnation proceedings, under our statute, does petitioner forfeit or lose the right of abandoning the same upon payment of all costs and damages actually accrued. It is, in our judgment, a correct answer that such privilege is lost whenever the land-owner acquires a vested right to the compensation awarded; but there is some diversity of opinion among the decisions as to when this vested right accrues. The statute declaring the procedure for ascertainment of damages, and for returning a verdict or certificate of award, contains, inter alia, the following:

"The court or judge, upon such certificate or verdict of a jury as hereinbefore provided, and due proof that such compensation and separate sums, if any be certified to be found, have been paid to the parties entitled to the same, or have been deposited to the credit of such parties, in court or with

1 See note at end of case.

the clerk of the court, for that purpose, shall make and cause to be entered in its minutes a rule describing such lands, a certified copy of which shall be recorded and indexed in the recorder's office of the proper county, in like manner and with like effect as if it were a deed of conveyance from the said owners and parties interested to the proper parties. Upon entering of such rule the said petitioner shall become seized in fee, except as hereinafter provided, of all such lands, real estate, or claims described in said rule, as required to be taken as aforesaid, and may take possession of, and hold and use, the same for the purposes specified in said petition." Code Civil Proc. § 242.

The exceptions mentioned in no way affect the question now under consideration. The foregoing statutory provision indicates the exact moment when petitioner becomes entitled to the rule which operates as a conveyance to him of the fee of the premises, and the right to possess, use, and enjoy the same. But, according to the conclusion reached in the better reasoned decisions, the rights of petitioner and respondent are reciprocal. Respondent acquires no vested right to the compensation awarded until petitioner has secured a vested right to the property condemned, and vice versa. Accordingly, it has been held, under statutes similar to ours in this respect, that the privilege of abandonment may be exercised at any time prior to the payment or deposit in the manner provided by law of the sum awarded. Stacey v. Vermont Cent. R. Co., 27 Vt. 39, and cases there cited; Peoria & R. I. Ry. Co. v. Rice, 75 Ill. 329; Norris v. Mayor, etc., 44 Md. 598; Graff v. Mayor of Baltimore, 10 Md. 544.

We think the foregoing conclusion eminently logical, and adopt it. This does not, however, as we shall presently see, relieve petitioner from liability for all legitimate expenses and injuries to respondent occasioned by the proceedings.

2. But it is ably contended by counsel for respondent that the foregoing can, in any event, only be considered good law in cases where petitioner has never had possession of the premises sought to be condemned; and that where, as in the case at bar, petitioner has secured and held possession pending condemnation proceedings, he cannot, after return of the award, abandon without consent of the land-owner. The statute (section 242, above mentioned) further provides that the court or judge may, at any stage of the proceedings, authorize petitioner to take possession of and use the premises, until the final conclusion of the adjudication, upon deposit in court or with the clerk of such sum as the court or judge may deem sufficient to pay the amount of damages ultimately awarded. We are not asked here to pass upon the constitutionality of this provision. Assuming, with counsel, that the statute is not obnoxious to this objection, we have before us simply a question of statutory construction demanding for its answer a declaration of the legislative intent. And the second question suggested by respondents may be restated as follows: Did the legislature intend to deprive a petitioner, who has taken advantage of the foregoing provision, of the privilege of abandonment from the moment the award or verdict is returned? There are no words

in the statute expressly giving such an effect to the fact; and the inference must be drawn, if at all, from the general provisions, scope, and purposes of the act.

The argument that, ordinarily, after verdict it is too late for plaintiff to take a nonsuit, is scarcely pertinent to the question before us. This is a special proceeding, differing widely in its purposes from those of the ordinary civil action, and governed by dissimilar rules of pleading and practice. It is hardly appropriate to regard abandonment in one case as analogous to nonsuit in the other. The principle stated in Pollard v. Moore, 51 N. H. 188, on this subject, we are unwilling to adopt as applicable, under our statute, to cases of the kind before us. Petitioner desires the property, or the right of way, as the case may be; but he does not desire it at an unreasonable and ruinous price. It may be that he is utterly unable to pay the exorbitant damages awarded, and would rather change his plans and build upon a new line, if the enterprise be a railway, or abandon the project altogether.

It should be noted, in passing, that the verdict of the jury or finding of commissioners that the premises described are necessary to the undertaking, is held not to bind petitioner to take those premises and none other; it is simply a declaration that according to the surveys and plans disclosed in the petition and evidence such taking is necessary.

But petitioner cannot know before return of the verdict that the price or damages allowed will be so excessive as to preclude adhering to the original plan adopted. We are therefore of opinion that the return of the award or verdict does not mark a period in the case at which it is too late to draw back; further, we think that, if it did, logically the same effect would be produced, whether possession pending the proceedings were obtained or not. Hence, if such possession operates to prevent abandonment, it should have this effect from the moment it is taken; that is to say, under the view urged by counsel for respondent, by electing to avail himself of the statute in this regard, petitioner should be held to forfeit the right to abandon at any time after obtaining possession in pursuance of such election, save upon consent of respondent.

We have assumed, without argument, as above suggested, that the authority to take possession of and use the property pending condemnation proceedings, by compliance with the statutory requirements, is not obnoxious to the constitutional inhibition against taking or damaging private property without just compensation to the owner; or against needlessly disturbing the same without payment or deposit of such compensation in court for the owner. The expense of transferring his improvements, if any have been made upon the premises, would doubtless have some influence with petitioner upon the question of abandonment; otherwise the fact of possession woulă in no way affect his reason for a change of plans. The awarding of

excessive compensation, or the happening of some other important and unexpected circumstance, would be no less disastrous than if no possession had been obtained. The reasons, then, which influence petitioner, and which are held sufficient to justify abandonment in cases where possession has not been taken, apply with equal force when the same has been obtained pending the adjudication.

How is it with respondent? Has he greater cause for complaint in the latter case than in the former? His occupancy and use of the premises are temporarily disturbed. But they are also disturbed to a less degree by the temporary possession taken in running surveys, locating lines, and the like. For damages arising from the temporary disturbance now under consideration, the statute affords respondent ample security. Before availing himself of this privilege, petitioner is required to deposit an amount sufficient to recompense respondent for the injury thus inflicted. It is our opinion that the sum deposited is, in case of abandonment, security for all damages suffered by reason of the temporary occupation, as well as for the compensation awarded if the ownership pass to petitioner. If this conclusion could not legitimately be drawn from the language and purposes of the statute, we might be compelled to indorse the proposition that by the act of taking possession thereunder petitioner renounces his right of abandonment, except with the owner's consent. For we are not prepared to hold this such a needful disturbance of property as to be allowable under the constitution without deposit of a sum to cover the damages occasioned.

It has been held that municipal corporations may discontinue and abandon condemnation proceedings, although possession has been taken and retained pending the same; and this, too, in cases where there does not appear to have existed any express statutory authority for such taking. 2 Dill. Mun. Corp. (3d Ed.) § 609, and cases cited. In view of the foregoing conclusions, we are disposed to hold that under the law petitioner retains the right to abandon, even though he procures a statutory order for possession, and takes the same pending proceedings. It is quite as important for him to have this privilege as if the possession had not been obtained, and respondent is fully protected. The latter may, within a reasonable time, have his action for all damages occasioned by the occupancy and use; and the sum deposited by petitioner is a security for the payment of such damages when ascertained. It cannot be correctly claimed that the foregoing conclusion tends to impair the obligation of contracts. The right of temporary possession, pending proceedings, is an incidental privilege, wisely conferred upon grounds of public policy, by express statutory provisions. In accepting the privilege, petitioner acts without consent of respondent, and in direct opposition to the latter's wishes. There is wanting, therefore, the most essential element of a contract, either express or implied. This act of petitioner can, in our judgment, no more constitute the basis of a contract than does

instituting the principal proceeding, and procuring therein an ascertainment and award of the compensation to be paid. Upon the latter subject, see Garrison v. City of New York, 21 Wall. 196.

3. Our statute authorizes a review of the proceedings by this court, either upon appeal or error, on application of the party dissatisficd with the "final determination" before a court or judge below. By procuring such review petitioner does not waive or destroy his right to abandon. Until this court has acted, and confirmed the conclusion reached below, the amount of compensation for damages is not finally determined. Until that moment, therefore, petitioner is not apprised of the sum he must pay to obtain title to the property, and the alternative or ultimatum of payment or abandonment is not finally presented. The expression used in Denver & N. O. R. R. Co. v. Jackson, 6 Colo. 340, that "the report of the commissioners, and approval thereof by the court, in overruling a motion to vacate and set aside. the same, fixes finally the price to be paid for the premises," means that such action is decisive of the question, and final, so far as that court is concerned.

But here, again, the legislature carefully guard the interests of respondent, and secure to him additional protection. While the right to such review is given absolutely, the possession, pending appellate proceedings, receives legislative attention. It is enacted that if petitioner desires to occupy and use the premises during such appellate proceedings, he must first deposit in court or with the clerk the amount of compensation ascertained and awarded. Code Civil Proc. § 250. A fair construction of this section, in view of the remaining provis ions of the statute, is, we think, that if petitioner has obtained possession under the law at the inception of his proceedings, he must, in order to retain possession pending the review in this court, make the deposit equal in amount, if not already so, to the sum awarded as compensation. Failing to comply with the foregoing requirement, the appeal or writ of error, if taken by him, will not be dismissed, but his possession becomes unlawful, and respondent is entitled to relief upon proper proceedings therefor.

4. Holding that petitioner in this case has had, and still has, the privilege of electing to abandon the condemnation proceedings altogether, a further question is presented. By its amended petition, as finally amended, petitioner sought to procure the premises specified, -being upwards of 11 acres,-for its depot grounds, machine-shops, and right of way. After the overruling of its motion to vacate the award it attempted to abandon all the premises, to the possession of which it was entitled under order of court, save the right of way alone,-less than two acres. Its road-bed had, in the mean time, been constructed over the land, thus appropriating the right of way; but no other actual possession of the premises had ever been taken, and any constructive possession thereof, if such a thing be possible in these proceedings, was fully abandoned by the erection of its depot