conveyance of April 1st, and the railroad | tion of the rights and interests intended to company had, therefore, no interest in the be appropriated, and such lands, rights, and claim for damages, and its exceptions to interests shall belong to such company, to the report of the appraisers should have use for the purpose specified, by making been stricken out, and the appeal dismissed. or tendering payment as hereinafter proIf appellee's contention can be sustained, vided." The statute further provides that, then the filing of the instrument of ap- if the corporation shall not agree with the propriation by appellant on March 29th did owner of the land touching the damages not amount to a taking of the property, sustained by such appropriation, is such and the appropriation did not become ef- owner is a nonresident of the county, the fective until after the conveyance of April corporation shall give notice thereof, and, 1st, which would make all assessable dam- "on the application of either party," the ages for the seizure the property of the court shall appoint three appraisers to apgrantee. We proceed to consider the merits praise the damages. The section further of the controversy. provides for the assessment of damages, requiring the appraisers to set forth in their report the "value of the property taken or injury done to the property, which they assess to the owner." It will be noted that, by this statute, which provides the formal procedure required of a railroad company in a condemnation proceeding, that the corporation may enter upon the land and make surveys and satisfy itself as to the most eligible line for its railroad without the consent of, or even notice to, the owner; and may appropriate so much thereof as it deems necessary to the construction and repair of the railroad. The owner's consent to the appropriation is wholly unimportant, and his right to direct, or in any way control, the particular location, is no greater than that of a stranger. No one can question the rights of a qualified corpora

The state reserved dominion over all the lands within its borders and the right to seize any part of it at any time it becomes necessary to the public welfare. This reserved power has been defined as the "right of the state to resume possession of private property for public use." Beekman V. Saratoga & S. R. Co. 3 Paige, 45, 22 Am. Dec. 679. It would subvert a salutary principle of government if it were made possible for an individual landowner to defeat a great public good for his own selfish or perverse ends. To avoid this difficulty, eminent domain is a power that necessarily resides in sovereignty to be ever present, and avail able in controlling and regulating those rights that pertain to the general public, as against the individual citizen. Being a power or right that belongs exclusively to the state, it follows that it can be exertion to take the property; and, if the procised only by those agencies that have been ceedings are orderly, no defense to the takduly empowered by the state through legis- ing can be interposed. So the statute very lative enactment. Therefore, when lodged appropriately directs that, as soon as the in a railroad or other corporation, it is in company has reached a decision as to the every proper sense a grant from the state line it will take, it shall "forthwith deposit that may be employed against private with the clerk a description of the rights property irrespective of the owner. Lewis, and interests intended to be appropriated," Em. Dom. § 306, p. 755; Sioux City & D. M. and, upon such filing, "such lands and R. Co. v. Chicago, M. & St. P. R. Co. (C. C.) interests shall belong to such company, to 27 Fed. 770. There is nothing in the spirit be used for the purpose specified, by makor letter of the statute conferring eminent ing or tendering damages as hereafter prodomain upon railroad corporations that im- vided." If it were not for the necessity of poses any restriction or condition upon its a procedure to secure a fair assessment of exercise beyond regularity of proceeding the damage, the proceeding might end with and the rendering of compensation to the the filing of the instrument of appropriaowner as required by the Constitution. tion. Under the statute, the filing of such Acts 1901, chap. 207, p. 463, which confers instrument specifically describing the propupon street railway companies the right of erty seized, and declaring the intention of eminent domain, by its § 5, being § 5468e, appropriating it, is the formal assertion of Burns's Anno. Stat. 1091, provides: "Such the absolute right to appropriate. Nothing company is hereby authorized to enter upon remains to be done but to compensate the any land for the purpose of surveying and owner. Indiana Power Co. v. St. Joseph & examining a railroad line, and may ap- E. Power Co. 159 Ind. 42, 50, 63 N. E. 304, propriate so much thereof as it may deem 64 N. E. 468; Williamsport & N. B. R. Co. necessary for its railroad. The v. Philadelphia & E. R. Co. 141 Pa. 414, 12 corporation shall forthwith deposit with L.R.A. 220, 21 Atl. 645; Dowie v. Chicago, the clerk of the circuit court, or other court W. & N. S. R. Co. 214 III. 49, 73 N. E. 354; of record wherein the land lies, the descrip | Old Colony R. Co. v. Miller, 125 Mass. 1, 6,

of appropriation strips the landowner of all right or power to defend against, or defeat the taking, if regularly and diligently prosecuted, either in his own right, or by a subsequent conveyance to another for a like or kindred purpose, seems to present an incontrovertible test of the correctness of our conclusion.

28 Am. Rep. 194; Morris & E. R. Co. v. | making or tendering payment as hereinBlair, 9 N. J. Eq. 635, 645; Rochester, H. after provided." This language manifestly & L. R. Co. v. New York, L. E. & W. R. means that the right to take the land beCo. 110 N. Y. 128, 133, 17 N. E. 680; Parks comes fixed by the filing of the instrument v. Boston, 15 Pick. 198, 208; Dupuis v. of appropriation, but does not become comChicago & N. W. R. Co. 115 Ill. 97, 3 N. E. plete, nor carry the right of possession or 720; Lewis, Em. Dom. § 306, pp. 754, 755, enjoyment, until the damage has been also § 477; Mills, Em. Dom. § 94; Baldwin, ascertained and paid or tendered; and, upon Am. Railroad Law, p. 89. Mr. Lewis, in payment or tender of the damage, the right said § 477, and Judge Elliott, in his Rail- to take, for the use specified, becomes perroads (vol. 3, § 985), assign Logansport, C. fect as of the date of filing the instrument & S. W. R. Co. v. Buchanan, 52 Ind. 163, of appropriation, except in cases appealed and Lafayette, M. & B. R. Co. v. Murdock, to the circuit court; upon payment of the 68 Ind. 137, to the same class. In Old damage awarded by the appraisers to the Colony R. Co. v. Miller, supra, the par- clerk of the court for the use of the landticular time when the damages accrued was owner, the company acquires the right to in issue between the railroad corporation take immediate possession pending the apand the landowner, and concerning which peal, subject, however, to having the right the court said: "The right of the land- of possession defeated by its failure to owner to damages for land taken by a make prompt payment of any additional railroad corporation is complete when the damage awarded by the jury. Heinl v. location is made [instrument of appropria-Terre Haute, 161 Ind. 44, 54, 66 N. E. 450. tion is filed]. That act constitutes the The fact that the filing of the instrument taking. It is the loss occasioned by the exercise of the right of eminent domain, at that time, for which the statute provides indemnity." In Dowie's Case, supra, the question was whether the company's condemnation was effectual when a part of the land became incorporated as a city; as to which the court said: "The rule seems to be clear that the rights and interests of the parties date from the time of the filing of the condemnation petition." In Parks v. Boston, supra, the court, in discussing the particular time to which the values and damages should relate, said: "Besides, the alienation of the plaintiff's property, so far as it was alienated at all, for the public easement, was definitive, complete, and perpetual on the day of taking." The case in 141 Pa. 407, was a contest between two railroads, and, in considering the priority, the court said: "The act of location is at the same time the act of appropriation. The space covered by the line as located is thereby seized and appropriated to the purposes of the construction and operation of the railroad by virtue of the power of eminent domain, and nothing remains to be done but to compensate the owner. After the act of location by the company, the owner, or the company, may proceed at once to secure an ascertainment of damages. Until such act, neither can do so; for no right to damages vests in, or accrues to, the owner, until there has been an apable and assessable as of the time or date propriation of his property by the corpora tion." To recall the language of the stat"And such lands, rights, and interests shall [upon the filing of the instrument of appropriation] belong to such company, to use for the purpose specified by

ute:

Some apparent confusion has crept into our cases as to the time and acts that shall operate to vest or pass the title to the condemning party, and also as to what particular time or event the assessment of damage shall relate. There should be no stumbling over the common expressions concerning the "vesting of the title" or the "passing of the title." Nothing more than an easement is acquired by a condemnor, and such expressions should be regarded as implying only the vesting or passing of the legal right of possession for the particular purpose specified; and in this sense there is no real conflict in any of our cases. Neither should there be any doubt or uncertainty as to what event or date the assessment of damage should refer. The statute we rely on was passed in 1901, in harmony with a long line of decisions from this court, holding, in effect, that, in cases where eminent domain is asserted, all damage flowing from the construction and proper operation of a railroad, both present and prospective, is ascertain

of the seizure or taking of the property. What constitutes the particular event, or act of seizure, or taking, to which relation must be had, has never before been before this court for decision. We have found it to be the filing of the instrument of ap

it was held that the damage resulting from the construction of the railroad accrued to the owner of the land at the time of the entry and making of the first grade, and that the cause of action for all present and prospective damages accrued to such owner, and did not descend with the land to his heir. See also New Jersey, I. & I. R. Co. v. Tutt, 168 Ind. 205, 80 N. E. 421; Indianapolis & C. Traction Co. v. Larrabee, 168 Ind. 237, 10 L.R.A. (N.S.) 1003, 80 N. E. 413.

Equally supportive of our position is another line of cases which hold that a seizure of land under eminent domain, at the instant of the seizure, gives the owner a personal claim for damages, in the nature of a chose in action, that will not pass to a subsequent grantee of the land under his deed without an express stipulation or assignment of the claim. In Indiana, B. & W. R. Co. v. Allen, 100 Ind. 409, in speaking of the right of a subsequent grantee to recover damages for the occupancy of a railroad, this court said: "When the strip of land was taken, the quarter section belonged to Martha E. Brittingham. The right to recover all the damages then belonged to her. That right was a chose in action. It did not pass to appellee by the warranty deed from Mrs. Brittingham. No assignment is alleged, and the rule is that damages to land remaining uncollected do not pass to a vendee,”—citing Pierce on Railroads, 185. "The right to compensation accrues and takes effect at the time of the taking, though it may be ascertained and declared afterwards. It belongs, therefore, to the person who is the

propriation. Therefore, if the property becomes lost to the owner upon the filing of the instrument of appropriation, that act must necessarily amount to a severance of the easement from his title, to a depletion of the enjoyment of his property, the value of which he or the condemning party may either proceed to ascertain by appraisement. Nothing remains to complete the appropriation but the ascertainment and payment of the damages. It is held by all the adjudications that have come to our notice that the landowner has no defense to a legal exercise of eminent domain against his property beyond the right to demand that his damages be paid. Upon the same principle, the first corporation that locates its railroad and gives notice of its intention, or files its instruments of appropriation, has priority of right. It has also been held that the filing of the appropriating instrument is such a taking as will be good against an unrecord- | ed deed. Barre R. Co. v. Montpelier & W. River R. Co. 61 Vt. 1, 4 L.R.A. 785, 15 Am. St. Rep. 877, 17 Atl. 923. On the general subject, see Lewis, Em. Dom. § 106, pp. 755, 756, and the cases collated; Morris & E. R. Co. v. Blair, 9 N. J. Eq. 635, 646; Sioux City & D. M. R. Co. v. Chicago, M. & St. P. R. Co. (C. C.) 27 Fed. 770. In the assess ment of damages in such cases, it is important that there shall be some definite, fixed, and certain period from which all estimates and reckoning may be made in the appraisal. In Logansport, C. & S. W. R. Co. v. Buchanan, supra, the trial court permitted several witnesses to testify as to the value of the land taken for a railroad at the time of the trial, with respect to which this court said: "The instrument of appro-owner at the time of the taking, and does priation was filed July 25, 1871, and the not, without an express stipulation, pass trial took place in May, 1873. Counsel for to a purchaser by a subsequent conveyance, appellee do not attempt to sustain this although containing covenants of warruling, and it seems to us that it cannot ranty." See also Evansville & T. H. R. Co. be sustained." In Lafayette, M. & B. R. v. Nye, 113 Ind. 223, 232, 15 N. E. 261; Co. v. Murdock, supra, this court held the Sherlock v. Louisville, N. A. & C. R. Co. following charge to the jury to be a correct 115 Ind. 22, 31, 17 N. E. 171; Indianapolis statement of the law: "Your inquiries as & V. R. Co. v. Price, 153 Ind. 31, 32, 53 N. to the amount of damages sustained by the E. 1018; Sioux City & D. M. R. Co. v. Chiplaintiff's, if any, should relate to the time cago, M. & St. P. R. Co. supra; Rochester, of the filing of the act of appropriation." H. & L. R. Co. v. New York, L. E. In Harshbarger v. Midland R. Co. 131 Ind. & W. R. Co. 110 N. Y. 128, 17 N. 177, 27 N. E. 352, 30 N. E. 1083, the rail- E. 680; Lewis, Em. Dom. § 306, p. 775; road company, in 1873, without right, 15 Cyc. Law & Proc. p. 795, and notes. The entered upon the land of one Meyers, and legislature itself adds strength to our conwith his knowledge, but without his conclusion by designating or characterizing the sent, constructed a grade for its railroad. In 1875 Meyers died, and his lands descended to the plaintiff. In 1887 the railroad company re-entered the premises, restored the grade it had made in 1873, and laid down its track, and entered upon the operation of its railroad. Upon these facts

filing of the instrument of appropriation as
the "act of appropriation." The language
employed follows: "Upon the filing of such
act of appropriation (referring to the
instrument of appropriation described in the
preceding sentence).
making of such publication," upon the ap-

and the

plication of either party the court shall apppellant.
point appraisers to assess the damage
Burns's Anno. Stat. 1901, § 5468e. The
notice here referred to is for the benefit of
the landowner, and a fair construction of
the provision is that the condemnor cannot
proceed with his application for the ap-
pointment of appraisers until the landowner
has been duly notified, but the latter may
waive notice and apply for the appointment
of appraisers at any time after the "act
of appropriation" referred to. If, then, the
landowner has the right to ask for the ap-
praisal of his damages immediately after
"the act of appropriation” is filed, may we in-
quire by what right he may claim damages,
if he has, at the time, parted with nothing?
As said by the supreme court of Pennsyl-
vania in the case above referred to: Until
there has been an actual appropriation,
neither the corporation nor the landowner
can apply for the assessment of damages
because no damage vests or accrues until
there has been an appropriation of his
property.

We cannot agree with the appellee's counsel that, since the conveyance by Dukes to the Ft. Wayne & Wabash Railway Company was made on the day before the first publication of notice, though after filing the instrument of appropriation, the land was then unaffected by the condemnation proceeding. As we view the matter, the notice required relates wholly to the ascertain ment of damages. Preliminary steps for the appointment of appraisers necessarily imply that the appropriation has already been accomplished, and the landowner damnified. We conclude that the instrument of appropriation filed by appellant with the clerk on March 29, 1901, was a seizure and an appropriation of the land therein described, and that all damage resulting from the taking and the construction of the railroad at once accrued and vested in the owners, Aaron Dukes and wife, appellees, as a money demand in their favor, against appellant, and which claim did not pass to the Ft. Wayne & Wabash Railway Company by the deed of Dukes and wife of April 1, 1901.

On May 2d the appraisement

was filed. May 11th, the appellee company, pon the objections and petition filed by Dukes and wife on April 27th, moved and requested the court to permit it to become a party to the proceeding. Over the objection of appellant, the motion was sustained, and appellee company thereupon filed exceptions to the proceeding that do not appear in the record. On May 13, 1901, appellant, under the direction of the court, paid to the clerk of the court the full amount of the appraisement for the use of the party authorized to receive it. More than two years afterward, to wit, October 2, 1903, appellee company filed what is termed its "amended exceptions," averring, among other things, that since April 1, 1901, its purpose had been to construct a railroad from Ft. Wayne to Wabash, along the line of the Wabash & Erie canal, and that ever since April 1, 1901, it had been the owner in fee simple, by conveyance from Aaron Dukes and wife, of the real estate sought to be appropriated by appellant by virtue of the proceeding in this action; and sets forth 30 specifications of fact as in denial of the right of appellant to make the appropriation, and as to the inadequacy of the damage assessed by the appraisers. By the specifications, it is shown that the appellant's instrument of appropriation was filed on March 29, 1901, and that the conveyance of Dukes and wife, under which it claims the right to file exceptions, was executed on April 1, 1901. There is no averment that Dukes and wife in any way assigned or transferred to appellee their claim for damages from said appropriation. Upon the day of the filing of said last-named exceptions, appellant moved the court to strike them out, because it affirmatively appeared therefrom that the Ft. Wayne & Wabash Railway Company had no interest whatever in the damages accruing by reason of appellant's appropriation proceeding; that it affirmatively appeared that, at the time of the filing of the instrument of appropriation and the accruing of damages in controversy, the appellee company had no interest whatever in the said real estate, or the damage occasioned by the appropriation thereof. The exceptions or answer, so far as appears from the record, affirmatively show that appellee company had no

The record discloses that, upon the maturity of the notice of the filing by appellant of its petition for the appointment of appraisers, to wit, on April 27, 1901, Dukes and wife appeared and filed what was interest whatever in the subject-matter of termed "objections" to the appointment of appraisers, and petition to make railway company (appellee), the alleged purchaser of the real estate involved, a party to the proceeding. Upon motion of appellant, the objections and petition were denied, and the appraisers were appointed as prayed by

the controversy; and such answer was therefore wholly foreign and irrelevant. The writer, speaking for a minority of the court, is of opinion that, as the motion was addressed to the exceptions or answer as a whole, for irrelevancy, and which answer could not in any event be made material