
    Atlantic & Great Western Railway Company v. Frederick Koblentz.
    Where a railroad company, in proceedings under the statute for condemnation of private property, pays into court the damages assessed, and takes possession of the property, and upon petition in error the assessment is set aside, and a new assessment awarded, it is competent for the jury in making the latter assessment, to allow and include in their verdict, interest from and after the time when possession was taken, and while the money was retained by the court.
    Error to the district court of Clark county.
    . In December, 1863, the plaintiff instituted proceeding? in the probate court, for condemnation of a right of way for its road over defendant’s land. The jury assessed the defendant’s damages at $2,804. A motion was made by the company for a new trial. This motion was overruled, and the company took a bill of exceptions. The court then affirmed the verdict, and the company having paid the said sum of $2,804 into court, the right of way was by the court adjudged to the company, and it took, and has ever since retained, possession of the same.
    On petition in error filed by the company, this judgment and proceeding were reversed and set aside by the court of common pleas, and the cause was retained and set down for trial in the latter court. On a subsequent petition in error, this judgment of the common pleas was affirmed in the district court, and the cause was remanded to the common pleas for further proceedings.
    At the trial of the cause in the common pleas, the court instructed the jury to allow interest on the compensation, from the time the company took possession. To this instruction the company excepted. The jury by their verdict found the value of the land taken to be $500, and the injury or damages to the residue of the defendant’s farm to be $1,900, making $2,400 ; and that there was due to the defendant from the company, for interest on that sum, from the time it took possession, the sum of $222 ; and that they, therefore, assessed the defendant's damages at $2,622.
    The company moved the court to set aside so much of this verdict as allowed interest; or to set aside the entire verdict and grant a new trial. Which motions the court overruled, and thereupon rendered judgment upon the verdict. To reverse this judgment of the common pleas a petition in error was prosecuted by the company in the district court, where the judgment and proceedings of the common pleas were affirmed. And now to reverse' this judgment of affirmance the present petition in error is filed.
    The only question involved is, whether the court erred in holding that the defendant was entitled to interest upon the $2,400.'
    
      Goode & Bowman for plaintiff in error:
    The question is, purely, one of construction of the provisions of the Act of April 30, 1852. In regulating the exercise of the power of eminent domain the legislature has not required that the corporation shall, as the condition of its right to enter upon the land, not only pay into court the amount of the compensation of the land owner as determined by the first assessment, but also be liable, in the event a second assessment should become necessary from any cause, to the land owner for interest on the compensation thus paid into court, in pursuance of the requirements of the statute. See secs. 9, 10, 11.
    It will not do to say, that in the event the proceedings in the probate court are confirmed, interest can be collected on the amount of the verdict, because the statute does not provide for any order or judgment of any kind whatever in the probate court against the corporation.
    There is nothing upon which to found a claim for interest. The verdict is not an instrument which bears interest. Kelsey v. Muryohy, 30 Penn. St. 340.
    It is clear, we think, from the statute, that the legislature intends that the payment of the money into court shall be a substitute for any personal order or judgment against the corporation. See sec. 11.
    If the legislature intended that the second verdict should be swelled by interest on the compensation, some reference would have been made to the subject of interest in order to carry out that legislative intent. But there is an utter absence of any provisions in this carefully prepared statue for the payment of interest.
    The statute evidently proceeds upon the theory that it is-better for the land owner to have his money in court — in the possession of the law — than in the hands of the corporation ; and the money, being in the hands of the law, it can not be deemed to be withheld from the land owner.
    Our construction of the statute is in consonance with the-principle embodied in our general statute relating to interest, which provides that creditors “shall be entitled to interest on all money withheld by unreasonable and vexatious delay of payment, (S. & C. 742) and is in accordance with the general principles of law on that subject. McElheney's Appeal, 46 Penn. St. 348 ; Candee & Scribner v. Webster, 9 Ohio St. 458.
    The compensation of the land owner being in the hands-of the law, the legislature is right in not providing any interest. Hazwell v. Farmer's Bank, 26 Term. 100 ; Hazwell v. V. C. R. R. Co. 23 Verm. 228; Osborn v. U. S. Bank, 9 Wheaton, 839.
    The delay in the receipt of the money by the land owner is the law’s delay, and not the delay of the corporation. Kelsey v. Murphy, 30 Penn. St. 340 ; Concord R. R. Co. v. Gurley, 3 Foster (N. H.) 237.
    It is well settled that in the absence of any provision of the statute in regard to costs, the land owner is not allowed his costs. 1 Redf. on Railways, 277, sec. 17 et seq.
    
    
      Spence & Arthur for defendant in error :
    The liability of the corporation to pay the defendant for the land taken and injuries done, was a debt due to the defendant from the corporation at the time it took possession, of the land. This debt may be said to grow out of a contract between the parties, which contract is a creature of the law, as found in the constitution, art. I, sec. 19, and the act of April 30, 1852, (S. & C. 311), passed in pursuance of that section of the constitution. 4 Ohio St. 308.
    The fact that the amount of defendant’s compensation was not known when the corporation took possession of the land does not affect the defendant’s right to recover interest from that time, when the amount should be found. It is not necessary that the damages should be liquidated to bear interest. 5 Cowen, 610; 5 Ohio, 424; 3 Wend. 356. And in such case he is enlitled to interest as a matter of right, not in the discretion of the jury. 2 Comst. 135.
    The law also requires that the estimate of damages shall refer back to the time when the land owner was deprived of his property. 4 Ohio St. 308 ; and that full compensation shall be given to him. 4 Ohio St. 308 ; 5 Denio, 401.
    If the land owner gets the money when the corporation enters upon the land, he would be fully and justly compensated ; but not so, if he does not get the money for a year or more after the corpoi’ation takes possession of the laixd.
    If the defendant causes delay he ought not to complain. But ixx this case the corporation filed the petitioixs in error.
    In answer to the proposition that the act under which the land was appropriated makes no provision for interest, and that, therefore, it cannot be recovered, it is sufficient to say that the act says nothing on the subject. It is not inconsistent with the general statute on the subject of interest. S. & C. 742 ; and under that we may recover interest as “ on a contract for money or property” from the time it was due, to wit, from the time the corporation took the land.
    The payment of the money into court is not a payment to the land owner, but is only a deposit of money for his security. The corporation, however, may enter upon the land and enjoy its use as fully as if it had been paid for, no matter how long the land owner may afterward be deprived of the use of the money, in consequence of delay iix litigation on possible errors in the probate court or axxy of the higher courts, at the instance of either party. This is grossly unjust to the land owner, unless he be allowed interest.
   Welch, C. J.

We see no error in these proceedings. Where private property is taken by the public for its use, the constitution guarantees to the owner a full compensation. To take the property, and deposit the compensation in the hands of a public officer, where the owner cannot reach it, is to deprive the owner of the use of his property, without giving him the use of the compensation. It is, to take from him the use of his property without any compensation. In the light of this constitutional provision, the real parties to the transaction are the public on the one hand, and the owner of the property on the other. By its laws the public has authorized the corporation, as its agent, to take the property, and has provided that the compensation shall be withheld, in the hands of one of its own officers, after the property is taken. This, of course, necessitates a loss to some one, of the interest on that compensation. It is not just that the loss should be cast upon the owner. The law by which the loss is occasioned is no act of his, but an act of the public, and he has no power to repeal or modify it, so as to avoid the loss. He is compelled to be passive, and •can only insist, as he does in this case, that compensation for his property taken by the public, shall either be paid at the time it is taken, or paid with interest, or with a fair allowance for the use of the property during the time it is withheld. Judgment affirmed.

White, Day, McIlvaine and West, JJ., concurred.  