1913. Appraisement. 1249. At the time fixed in either aforesaid notices, the appraisement may be made and returned in tracts larger than forty acres, and all the lands appearing of record to belong to one person and lying in one tract may be included in one appraisement and return, unless the agent or attorney of the corporation, or the commissioners, has actual knowledge that the tract does not belong wholly to the person in whose name it appears of record; and in case of such knowledge, the appraisement shall be made of the different parcels, as they are known to be owned. [Same, § 4.]

That damages to the entire premises of a property owner, and not merely to the government subdivision through which the road passes, are to be assessed, see notes to § 1908.

1914. Dwelling-house, garden, or orchard. 1250. If it appears from the finding of the commissioners, that the dwelling-house, outhouse, orchard, or garden, of the owner of any land taken will be overflowed or otherwise injuriously affected by any dam or reservoir to be constructed under such section twelve hundred and forty-two of this chapter [§ 1905], such dam shall not be erected until the question of such overflowing or other injury has been determined upon appeal in favor of the corporation. [12 G. A., ch. 117, § 3.]

1915. Talesmen. 1251, In case of the death, absence, neglect, or refusal, of any of said freeholders to act as commissioners as aforesaid, the sheriff shall summon other freeholders to complete the panel. [R., § 1319.] 1916. Costs. 1252. The corporation shall pay all the costs of the assessment made by the commissioners, and those occasioned by the appeal, unless on the trial thereof a less amount of damages is awarded than was allowed by the commissioners. [R., § 1317; 14 G. A., ch. 119.]

Unless the court is asked to make an apportionment of costs complained of, error in not making such an apportionment cannot be made on appeal. Cox v. Mason City & Ft. D. R. Co., 77-20.

Where the damages allowed on the appeal are less than those awarded in the assessment, in the absence of any showing that either party has made an offer, the costs should be apportioned. Noble v. Des Moines & St. L. R. Co., 61-637.

lf, on the trial of an appeal by the land owner, a less amount of damages is given than was awarded by the commissioners, the court is not bound to tax all the costs of appeal to him, but may distribute them according to the general rules of law without reference to this section. Jones v. Mahaska County Coal Co., 47-354.

The purchaser of a railroad pending an appeal from allowance of damages for right of way becomes liable for the payment of costs incurred in such proceeding. Frankel v. Chicago, B. & P. R. Co., 70-424.

1917. Report recorded. 1253. The report of the commissioners, where the same has not been appealed from, and the amount of damages assessed and costs have been deposited with the sheriff, or, if an appeal is taken and the amount of damages assessed on the trial thereof has been paid to the sheriff, may be recorded in the record of deeds in the county where the land is situate, and such record shall be presumptive evidence of title in the corporation to the property so taken, and shall constitute constructive notice of the rights of such corporation therein. [13 G. A., ch. 125, § 1.]

L

The company cannot be compelled to pay the damages assessed and take the right of way, but may waive the rights acquired by the proceedings, be

ing liable, however, for costs, and any damages actually suffered by the land owner. Gear v. Dubuque & S. C. R. Co., 20-523

The recording of the award, if done by mistake, does not pass any title to the company so as to raise an implied contract to pay the amount of the award; certainly not until the fact of the mistake has become known to the company and it has had a reasonable time to correct it. Dimmick v. Council Bluffs & St. L. R. Co, 58-637.

Where a portion of plaintiff's land was included in the right of way condemned, but the road was not actually constructed over any portion of his land, which remained fenced and was not entered upon, held, that an appropriation did not appear, and title to the right of way did not pass to the company until it had made payment. Ibid. And see S. C. 62-409.

APPEALS IN CONDEMNATION PROCEEDINGS.

1918. How taken. 1254. Either party may appeal from such assessment of damages to the circuit [district] court within thirty days after the assessment is made, by giving the adverse party, or, if such party is the corporation, its agent or attorney, and the sheriff, notice in writing that such appeal has been taken; the sheriff shall thereupon file a certified copy of so much of the appraisement as applies to the part appealed from, and said court shall thereupon take jurisdiction thereof and try and dispose of the same as in actions by ordinary proceedings. The land owner shall be plaintiff and the corporation defendant. [R., § 1317.]

Waiver. Objections to the jurisdiction of the sheriff's jury are not waived by appearance on appeal.___ Stough v. Chicago & N. W. R. Co., 71-641.

Exclusive remedy. The remedy by appeal is conclusive of all other remedies as to the manner and method of taking advantage of irregularities in the proceeding. Philips v. Watson, 63-28.

An appeal is a plain, adequate and speedy remedy when the claim is that insufficient damages are given. Irregularities in the proceeding cannot be corrected by certiorari. Cedar Rapids, I. F. & N. W. R. Co. v. Whelan, 64-694.

Joint Assessment. Where the damages are assessed jointly in favor of two owners, one of them cannot properly prosecute an appeal without joining the other as appellant or making him a party to the proceedings by notice. Upon failure to do so the appeal should be dismissed on motion. Chicago, R. I. & P. R. Co. v. Hurst, 30-73.

A subsequent settlement with a part of the owners in common, where the assessment is not apportioned, will not defeat an appeal with those not settled with. Ruppert v. Chicago, O. & St. J. R. Co., 43-490.

By mortgagee. The owner may take an appeal without joining a mortgagee therein, although an award has been made in favor of the owner and mortgagee jointly. Lance v. Chicago, M. & St. P. R. Co., 57–636; Dixon v. Rockwell, S. & D. R. Co., 75-367.

By person not party. A person not a party to the proceedings, although interested in the property, cannot appeal. Such person might, perhaps, make himself a party before the commissioners, but he cannot make himself a party merely by appealing. Connable v. Chicago, M. & St. P. R. Co., 60-27; Cedar Rapids, I. F. & N. W. R. Co. v. Chicago, M. & St. P. R. Co., 60-35. Whether, where publication of notice is authorized to be made to parties interested, all persons interested are to such extent parties as that they may appeal, quære. Ibid.

As to part of damages. Where the assessment covers the entire damage to two contiguous tracts used together and owned by the same person, an appeal cannot be taken from an assessment as to one tract only. Cedar Rapids, I. F. &. N. W. R. Co. v. Chicago, M. & St. P. R. Co., 60-35.

The Sheriff is not a party to the condemnation proceedings, and is not disqualified from serving notice of appeal therein. Ibid.

Notice. Whether the giving of notice to the deputy sheriff would be sufficient, quære. Waltmeyer v. Wisconsin, I. & N. R. Co., 64-688.

But where it appeared that notice was brought to the sheriff's attention and he directed the deputy to accept service, held, that the notice was sufficient. Ibid.

Notice of appeal may be properly served on the engineer in charge of the survey and location of the railroad, and transacting business connected with securing the right of way in the county where the appeal is taken. Jamison v. Burlington & W. R. Co., 69–670.

Where the notice of appeal describes the premises in the same way as they are described in the application for condemnation, the land owner is not limited in his recovery of damages accruing to the portion of his premises described, but may show the damages to his entire farm. Dudley v. Minnesota & N. W. R. Co., 77-408.

The time for taking the appeal begins to run from the time the assessment is in fact made, reduced to writing, and made public, or in some legitment manner comes to the knowledge of the parties interested. Ibid.

Upon motion being made to dismiss the appeal because not taken in time, affidavits of jurors for making the assessment are receivable to show when the assessment was actually made. Ibid.

Filing papers. Where the appeal has properly been taken by notice, the appellant should not be prejudiced by a failure of the officer to file the papers at the time required by statute. Robertson v. Eldora R. etc., Co., 27-245. Change of venue may be had on the appeal the same as in civil actions. Whitney v. Atlantic Southern R. Co., 53-651.

Assessment of damages on appeal. On appeal the question of damages is to be determined upon its merits and the regularity of prior proceedings, such as the selection of commissioners, etc., is not to be called in question. That can only be done by certiorari. Mississippi & M. R. Co. v. Rosseau, 8-373. And see Runner v. Keokuk, 11–543.

The assessment of damages upon appeal is to be made without any reference to that appealed from. Hahn v. Chicago, O. & St. J. R. Co., 43-333. The notice of appeal is presumptive evidence of an assessment from which an appeal can be taken. Ibid.

An appeal by the land owner from the assessment of the commissioners cures any defect in regard to giving notice of the assessment to such owner. Borland v. Mississippi & M. R. Co., 8-148.

In the proceedings on appeal an offer to confess judgment may be made with the consequences provided in § 4109, with reference to costs. Harrison v. Iowa Midland R. Co., 36-323.

The company may dismiss the proceedings at any time before judgment upon payment of costs. Burlington & M. R. v. Sater, 1-421.

It would seem that a land owner appealing need not give bond; but even if that be necessary, the failure to give bond at the time the appeal is taken ought not to work the dismissal of the appeal. Robertson v. Eldora R. etc., Co., 27-245.

Judgment. Where, under the provisions of a previous statute, general judgment was rendered against the company on the appeal, held; that it could have no greater effect than an assessment of damages. Gear v. Dubuque & S. C. R. Co., 20-523.

Allowance of interest. In case of an appeal by the railway company, the proper measure of damages is the value of the land at the time of its appropriation, with interest thereon to the date of judgment. Daniels v. Chicago I. & N. R, Co., 41-52.

Interest may be allowed on damages awarded from the time of condemnation, provided the damages are greater than those allowed by the sheriff's jury. Hartshorn v. Burlington C. R. & N. R. Co., 52-613.

Interest on the assessment does not begin to run from the time of the assessment, but only from the time of taking possession. Haye v. Chicago, M. & St. P. R. Co., 64-753.

In estimating the damages upon appeal the jury may consider the injury as originally sustained, and the interest which the original sum would have borne during the delay. Noble v. Des Moines & St. L. R. Co., 61–637.

Where the court simply directed the jury to allow plaintiff the market value of the land taken at the time that it was taken, held, that such instruction was proper, and that interest should be allowed on the amount of the verdict from the time of the appropriation. Hollingsworth v. Des Moines & St. L. R. Co., 63-443.

The damages are to be assessed as of the date of the assessment by the sheriff's jury, and then upon the rendition of the verdict the court should make the proper order touching the question of interest. Such order should fix the date when the interest begins to run, which should be when the company deprives the property owner of the use of his property. Reed v. Chiccgo, M. & St. P. R. Co., 25 Fed. Rep., 886.

1919. Deposit. 1255. An appeal shall not delay the prosecution of the work upon said railway, if said corporation pays or deposits with the sheriff the amount assessed by the commissioners; said sheriff shall not pay such deposit over to the person entitled thereto after the service of notice of an appeal, but shall retain the same until the determination thereof. [R., § 1317.]

If an appeal is taken to the lower court and the damages awarded are greater than were allowed by the commissioners, the company desiring to appeal to the supreme court must deposit the additional amount with the sheriff, and is not relieved from the obligation to do so by giving a supersedeas bond. Downing v. Des Moines N. W. R. Co., 63-177.

The right of the owner to receive the amount so deposited is suspended until the appeal is decided. The property is not taken, in an absolute sense, until the final assessment is paid, and the section is, therefore, not unconstitutional. Peterson v. Ferreby, 30-327.

The sheriff holds the deposit not as agent of the owner, but as agent of the company, and if it does not come into the hands of the owner, or is for any reason lost or misappropriated, such loss must be sustained by the company. White v. Wabash, St. L. & P. R. Co., 64-281.

For moneys paid to a sheriff the land owner may maintain action against him at any time after the expiration of thirty days allowed for appeal. The statute of limitations, therefore, runs against such action from that time, and the fact that the land owner has refused the money and has attempted by injunction to restrain the taking of his land will not prevent the running of the statute. Lower v. Miller, 66–408.

1920. When barred. 1256. An acceptance by the land owner of the damages awarded by the commissioners shall bar his right to appeal.

So held before there was any such statutory provisions. Mississippi & M. R. Co. v. Byington, 14–572.

1921. Trial; judgment. 1257. On the trial of the appeal, no judgment shall be rendered except for costs; the amount of damages shall be ascertained and entered of record, and, if no money has been paid or deposited with the sheriff, the corporation shall pay the amount so ascertained, or deposit the same with the sheriff before entering upon the premises.

Under the Revision (which contained no similar provision), held, that where a general judgment was rendered against the company on appeal, it could have no greater effect than an assessment of damages as contemplated by the statute. Gear v. Dubuque & S. C. R. Co., 20-523.

Interest may be allowed on the damages awaaded from the time of condemnation, provided such damages are greater than as found by the sheriff's jury. Hartshorn v. Burlington, U. R. & N. R. Co., 52–613. Further as to interest, see notes to § 1918.

1922. Additional deposit. 1258. If, on the trial of the appeal, the damages awarded by the commissioners are increased, the corporation shall pay or deposit with the sheriff the whole amount of damages awarded before

entering on, or, in any manner whatever, using or controlling the premises. And said sheriff, upon being furnished with a certified copy of such assessment, may remove said corporation, its agents, servants, or contractors, from said premises unless the amount of the assessment is forthwith paid or deposited with him.

Where the amount of damages awarded by the commissioners is paid to the sheriff and the company enters upon the land, if upon appeal by the land owner a larger sum is awarded, the company may be enjoined from further use of the property until it pays such further sum. Richards v. Des Moines Valley R. Co., 18-259.

The federal court will not order its marshal to oust the railway company from the possession of the premises for non-payment of damages for the right of way fixed in that court on appeal, when the remedy of the statute, by application to the sheriff, is open to the property owner. Reed v. Chicago, M. & St. P. R. Co., 25 Fed. Rep., 886.

If appeal is taken from the award and the damages awarded are greater than were allowed by the commissioners, the company desiring to appeal to the supreme court must deposit the amount with the sheriff, and is not relieved from the obligation by giving a supersedeas bond. Downing v. Des Moines N. W. R. Co., 63-177.

1923. Damages reduced. 1259. If the amount of the damages awarded by the commissioners is decreased on the trial of the appeal, the amount assessed on the trial of such appeal only shall be paid the land owners.

CONDEMNING RIGHT OF WAY FOR CHANNELS AND DITCHES.

1924. In what cases. 18 G. A., ch. 191, § 1. In all cases where any railroad corporation, organized under the laws of this state or any other state, owning or operating a line of railroad within this state, would have the right at this time, by procuring the right of way from the land owner, to dig a channel or cut a ditch in such manner as to change and straighten the course of a stream too frequently crossed by its road, or to protect the right of way and road-bed, or promote the safety and convenience of the operation of the road, such railroad company may condemn the right of way as provided in the next section.

This statute, at least in so far as it applies to cases where the right of way is taken, as provided for the purpose of promoting the safety of the traveling public, is not unconstitutional as authorizing the taking of private property for other than a public purpose. Reusch v. Chicago, B. & Q. R. Co.,

57-687.

1925. Method of Procedure. 18 G. A., ch. 191 § 2. Any such railroad corporation desiring the right of way for any of the purposes contemplated in the preceding section, where its officers and the land owner cannot agree upon the compensation to be paid him, or when he refuses to grant the right of way, may cause to be condemned, of land belonging to such person a strip or belt of such reasonable width as may be necessary for the channel or ditch so desired, by pursuing in all respects, as near as may be, and so far as applicable, the provisions of law for the condemnation of real estate for right of way for said railroads, as provided in sections 1241, 1242, 1243, 1244, 1245, 1246, 1247, 1248, 1249, 1250, 1251, 1252 and 1253 of the code of 1873. [§§ 1904-1917].

1926. Appeal. 18 G. A., ch. 191, § 3. Either party may appeal from such assessment in the manner provided for appeals from the assessments of