Ft. Wayne, etc., Traction Co. v. Ft. Wayne, etc., R. Co.-170 Ind. 49.

the intention of appropriating it, is the formal assertion of the absolute right to appropriate. Nothing remains to be done but to compensate the owner. Indiana Power Co. v.

St. Joseph, etc., Power Co. (1902), 159 Ind. 42; Williamsport, etc., R. Co. v. Philadelphia, etc., R. Co. (1891), 141 Pa. St. 407, 414, 21 Atl. 645, 12 L. R. A. 220; Dowie v. Chicago, etc., R. Co. (1905), 214 Ill. 49, 73 N. E. 354; Old Colony R. Co. v. Miller (1878), 125 Mass. 1, 6, 28 Am. Rep. 194; Morris, etc., R. Co. v. Blair (1854), 9 N. J. Eq. 635, 645; Rochester, etc., R. Co. v. New York, etc., R. Co. (1888), 110 N. Y. 128, 133, 17 N. E. 680; Parks v. City of Boston (1834), 32 Mass. 198, 209; Dupuis v. Chicago, etc., R. Co. (1885), 115 Ill. 97; 2 Lewis, Eminent Domain (2d ed.), §306, p. 754, also $477; Mills, Eminent Domain (2d ed.), $94; Baldwin, Am. R. Law, 89. 2 Lewis, Eminent Domain (2d ed.), §477, and 2 Elliott, Railroads (2d ed.), §985, assign Logansport, etc., R. Co. v. Buchanan (1875), 52 Ind. 163, and LaFayette, etc., R. Co. v. Murdock (1879), 68 Ind. 137, to the same class.

In Old Colony R. Co. v. Miller, supra, the particular time when the damages accrued was in issue between the railroad corporation and the landowner, and the court said: "The right of the landowner for damages for land taken by a railroad corporation is complete when the location is made. [instrument of appropriation is filed]. That act constitutes. the taking. It is the loss occasioned by the exercise of the right of eminent domain, at that time, for which the statutes provide indemnity."

In Dowie v. Chicago, etc., R. Co., 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. City of 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 prop

Ft. Wayne, etc., Traction Co. v. Ft. Wayne, etc., R. Co.-170 Ind. 49.

erty, so far as it was alienated at all, for the public easement, was definitive, complete or perpetual on the day of taking."

The case of Williamsport, etc., R. Co. v. Philadelphia, etc., R. Co., supra, 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 except 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 the damages. Until such act neither can do so; for no right to damage vests or accrues to the owner until there has been an appropriation of his property by the corporation."

To recall the language of the statute: "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 making or tendering payment as hereinafter provided." $5679 Burns 1908, Acts 1903, p. 92, §3. This language manifestly means that the right to take the land becomes fixed by the filing of the instrument of appropriation, but does not become complete, nor carry the right of possession or enjoyment, until the damage has been ascertained and paid or tendered; and upon payment or tender of the damage the right to take, for the use specified, becomes perfect as of the date of filing the instrument of appropriation, except in cases appealed to the circuit court. Upon payment of the damage awarded by the appraisers to the clerk of the court for the use of the landowner, the company acquires the right to take immediate possession pending the appeal, subject, however, to having the right of possession defeated by its failure to make prompt payment of any additional damage awarded by the jury. Heinl v. City of Terre Haute (1903), 161 Ind. 44.

Ft. Wayne, etc., Traction Co. v. Ft. Wayne, etc., R. Co.-170 Ind. 49.

The fact that the filing of the instrument 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.

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 to. 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 to. 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 ascertainable and assessable as of the time or date 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 been before this court for decision. We have found it to be the filing of the instrument of appropriation. 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 proceed to ascertain by appraisement. Nothing remains to complete the appropriation. but the ascertainment and payment of the damages. It is

Ft. Wayne, etc., Traction Co. v. Ft. Wayne, etc., R. Co.-170 Ind. 49.

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 3. notice of its intention, or files its instruments of ap

propriation, 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 unrecorded deed. Barre R. Co. v. Montpelier, etc., R. Co. (1888), 61 Vt. 1, 17 Atl. 923, 4 L. R. A. 785. On the general subject see 2 Lewis, Eminent Domain (2d ed.), §306, p. 755, and authorities collated; Morris, etc., R. Co. v. Blair (1854), 9 N. J. Eq. 635, 646; Sioux City, etc., R. Co. v. Chicago, etc., R. Co. (1886), 27 Fed. 770.

In the assessment of damages in such cases it is important that there shall be some definite, fixed and certain 1. period from which all estimates and reckoning may be made in the appraisal.

In Logansport, etc., R. Co. v. Buchanan, supra, the trial court permitted several witnesses to testify as to the value, at the time of the trial, of the land taken for a railroad, and this court said: "The instrument of appropriation was filed July 25, 1871, and the trial took place in May, 1873. Counsel for the defense do not attempt to sustain this ruling, and it seems to us that it cannot be sustained."

In LaFayette, etc., R. Co. v. Murdock, supra, this court held the following charge to the jury to be a correct statement of the law: "Your inquiries as to the amount of damages sustained by the plaintiffs, if any, should relate to the time of the filing of the act of appropriation.'

In Harshbarger v. Midland R. Co. (1892), 131 Ind. 177, the railroad company, in 1873, without right, entered upon the land of Meyers, and with his knowledge, but without his consent, constructed a grade for its railroad. In 1875 Meyers died and his lands descended to the plaintiff. In

Ft. Wayne, etc., Traction Co. v. Ft. Wayne, etc., R. Co.-170 Ind. 49.

1887 the railroad company reëntered the premises, restored the grade it had made in 1873, laid down its track, and entered upon the operation of its railroad. Upon these facts 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, etc., R. Co. v. Tutt (1907), 168 Ind. 205; Indianapolis, etc., Traction Co. v. Larrabee (1907), 168 Ind. 237, 10 L. R. A. (N. S.) 1003.

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 4. 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, etc., R. Co. v. Allen (1885), 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 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 and her husband. No assignment is alleged, and the rule is that damages to land, remaining uncollected does not pass to a vendee." It is said in Pierce, 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 owner at the time of the taking, and does not, without an express stipulation, pass to a purchaser by a subsequent conveyance, although containing covenants of warranty." See, also, Evansville, etc., R. Co. v. Nye (1888). 113 Ind. 223, 232; Sherlock v. Louisville, etc., R. Co. (1888),