the property on giving security cannot be reasoned away in such a manner. Sufficient sureties,' as used in the act of 1856, does not mean sureties who will not, or cannot, become insolvent. If it did, then no such bond as the act requires could ever be given, because there are no such sureties. The history of the business world proves that they do not exist. The only reasonable, and therefore the true, construction of the word secured 'in the constitution, is that it shall be made reasonably safe or sure that the owner of the property taken shall be able to collect the compensation for it; and the words 'sufficient sureties,' in the act, must be construed to mean such sureties as at the time they are taken made it reasonably certain that the owner of the property taken can collect from them a just compensation. These views are fully sustained by the supreme court in Fries v. Southern Pa. R. & Min. Co., 85 Pa. St. 73, and Hoffman's Appeal, 118 Pa. St. 512. True, the solvency of the sureties was not a question in either of those cases; but, if their insolvency could have defeated the company's right in either case, the supreme court could not have reached the conclusion it did reach. I have thus again considered the vital question in this case. As already stated, it has several times before been decided by this court. What I have now said is but a repetition in another form of what was said in the case of Elizabeth Welsh v. The New Castle Northern Ry. Co. The counsel said the reasoning in that case did not appear very satisfactory. Possibly, I have now made the subject more clear. The case might have been disposed of on the point made by the learned master, that the whole subject matter of the present bill and complaint was adjudicated on the former petition; but I thought it would be better to reconsider the merits of the case. The exceptions to the master's report are not sustained, and plaintiffs' bill is dismissed; the plaintiffs to pay

the costs.

Plaintiffs appeal.

Dana & Long and W. D. Wallace, for appellants.

J. Norman Martin and D. B. & L. T. Kurtz, for appellees.

PER CURIAM.-The appeal presents a question of some interest and importance. It is so well discussed by the learned judge of the court below that we affirm the decree upon his opinion. This decree is affirmed, and the appeal dismissed, at the costs of the appellants.

Eminent Domain-What is Sufficient Security for Compensation-Bonds. ---See note 17 Am. & Eng. R. Cas. 26, 27. In a recent Massachusetts case, Old Colony R. Co. v. Framingham Water Co., 27 N. E. Rep. 612, it was held that a statute providing that the owner of land taken thereunder by a water company might, upon application of either party, require the com

pany to give security to the selectmen of the town for the payment of all damages that may be awarded to them; and if, upon petition of the owner, the security appears to the selectmen to have become insufficient, they shall require the giving of further security. Held, that the provision for compensation is sufficient. The court said: "The provision for compensation for the land taken is sufficient. It is precisely the same as that contained in Pub. St. chap. 112, § 97, in reference to land taken for a railroad, except that the selectmen of the town are made the tribunal to determine the sufficiency of the security, instead of the county commissioners. Under the constitutions of several of the states, and probably under the decisions of the courts in some others, this provision for compensation would not be held sufficient and a statute of this kind would be unconstitutional; but in this commonwealth the law is settled differently. Brickett v. Hav erhill Aqueduct Co., 142 Mass. 394; Woodbury v. Marblehead Water Co., 145 Mass. 509; Bigelow v. Union Freight R. Co., 137 Mass. 478, 20 Am. & Eng. R. Cas. 425. See also, Cushman v. Smith, 34 Me. 247; Pittsburg v. Scott, 1 Pa. St. 306; Robottom v. McClure, 4 Blackf. (Ind.) 505."

GEORGIA SOUTHERN & FLORIDA R. Co.

v.

SMALL et al.

(Georgia Supreme Court, July 8, 1891.)

Eminent Domain-Time as to which Damages should be Assessed—Ap. peal. There being no tender made by the company on the basis of the first verdict or award in the condemnation proceedings, there was no taking by the company for public use on that basis, and it was not error on the trial of an appeal to admit evidence of the value of the property at the time of the appeal trial, and to instruct the jury to assess compensation accordingly.

ERROR from Superior Court, Bibb County.

Gustin, Guerry & Hall and Dessan & Bartlett, for plaintiff in

error.

R. W. Paterson and Robt. Hodges, for defendants in error.

Case stated.

SIMMONS, J.-This bill of exceptions recites "that, during the April term of the superior court of Bibb county, there came on to be heard a certain cause, wherein A. B. Small, trustee, was complainant, and the Georgia Southern & Florida Railroad Company was defendant, the same being an action to enjoin the said railroad company from the further prosecution of condemnation proceedings to condemn certain lands in the city of Macon belonging to said complainant, which condemnation proceedings had been instituted under the charter of said railroad company; and also the case of the Georgia Southern & Florida Railroad Company v. A. B. Small, trustee, said last-mentioned case being a statutory proceeding to condemn the property of said Small,

trustee, for the use of said railroad company, and then and there pending upon appeal from the verdict of the jury in said condemnation proceedings; both of which cases were by the order of the court consolidated and tried together; and, both parties having announced ready in both cases, a jury was impaneled to try the same." The bill of exceptions then goes on to recite that, pending the trial, the court allowed certain witnesses to testify as to the value of the property at the time of the trial. This was objected to upon the ground that the testimony sought to be elicited was illegal, for the reason that the value of the property to be submitted to the jury was the value at the time of the condemnation proceedings in July of the preceding year, and not its value at the time of the pending trial, (May, 1890;) which objection was overruled by the court, and the witnesses allowed to answer the questions. The company excepted, and assigned error thereon. The judge charged the jury as follows: "The sole issue for the jury on this branch of the case, is to determine the present value of the property, located as it is in the city of Macon, at the present time, and for that purpose may be used all the testimony that throws any light upon that question of the present value of the property." To this charge the company also excepted, and assigned the same as error. The constitution of the state declares (Code, § 5024) that " private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid." It appears from the above recital of erty is confacts set out in the bill of exceptions that the railroad company had, under its charter, in July, 1888, instituted condemnation proceedings for the purpose of taking this land from Small for its use. A jury had been summoned by the sheriff in accordance with the provisions of the charter, and they had assessed the value of the land. Small, being dissatisfied with the verdict, appealed to the superior court, and at the same time filed a bill seeking to enjoin the railroad company from condemning the land. The only question made by this record is whether, on the trial of the appeal in the superior court, the value to be assessed by the jury should be the value of the land at the time of the condemnation proceedings in July, 1888, or its value at the time of the trial of the appeal, May, 1890. This question depends upon what time the taking is complete, so as to authorize the railroad company to take possession of the land. Under the clause of the constitution above quoted, the landowner must first be paid, before the railroad company is entitled to take his prop erty and go into possession of it. If both parties are satisfied with the award of the jury summoned to assess the value of

When prop

sidered as taken.

the property, the railroad company must pay the amount as sessed before it can take possession. If the owner is dissatisfied, and appeals to the superior court, and the railroad desires immediate possession, it must tender the amount assessed by the jury before it can go into possession. In the case of Oliver v. Union Point & W. P. R. Co., 83 Ga. 257, 39 Am. & Eng. R. Cas. 107, this court held that the tender of the sum assessed and awarded, duly made and continued, but refused, is the equivalent of actual payment of the award, in its effects on the right of the corporation to enter upon the land and prosecute the work of construction. If this company had tendered to Small the amount assessed by the jury in the condemnation proceeding, it might have had the right at the time to take possession of the property, and a tender, properly made and continued, would have been equivalent to an actual payment. It is not necessary, however, to decide definitely this particular question. We have carefully scruti nized this record, and there is no indication or intimation therein that any tender of the amount assessed was made by the company to Small. There was consequently no taking by the company for public use, and it was no error on the trial of the appeal to admit evidence of the value of the property at the time of the trial; nor was there any error in the charge of the court above recited. If a tender had been made and continued, then the value of the property at the time it was assessed in the condemnation proceeding might have been the proper basis for estimating its value at the appeal trial; but, inasmuch as the record does not show that tender was made, there was no taking, and no right of possession, and the value at the time of that trial was the proper basis. Judgment affirmed.

Time as to which damages should be assessed.

Eminent Domain-Time as to which Damages should be Assessed.-See post, Chicago, M. & St. P. R. Co. v. Randolph Town Site Co., and note.

CHICAGO, MILWAUKEE & ST. PAUL R. Co.

ย.

RANDOLPH TOWN-SITE CO.

(103 Missouri, 145.)

Eminent Domain-Damages-Time at which Value of Land is ReckonedWrongful Entry.-Where private property is taken for public use, the compensation must be based on the value of the land at the date of the taking or appropriation; and this means, at the time the property is taken or appropriated by proper legal proceedings, and not at the time of some previous wrongful entry, although made with the knowledge, and without the active opposition of the owner of the land.

Failure of Court to Instruct Commissioners.—The failure of the court, in condemnation proceedings, to instruct the commissioners as to their duties, neither party having requested that instructions be given, is not ground for setting aside the award of such commissioners.

Report of Commissioners-Sufficiency of Description of Land.-Commissioners to assess damages in condemnation proceedings described the land through which the railroad ran as, a strip 100 feet wide extending from the east side to the west side, through the centre of which strip the railroad is now surveyed and located, so as to leave one half of the width on each side of said center line." Held, that the land was sufficiently identified.

Jurisdiction of Court-Efforts of Parties to Agree.-A railroad company in condemnation proceedings, cannot object that the court acquired no jurisdiction, because no efforts have been made to agree by the parties, where the company's petition avers that such efforts were made, and no issue was tendered by the defendant on that question.

Right to Jury Trial-Waiver.-Either party in condemnation proceedings bas a right to demand trial by jury; but without such a demand, a jury trial will be waived.

APPEAL from Clay Circuit Court.

E. J. Broaddus and Prosser Ray, for appellant.
Peak, Yeager & Ball, for respondent.

Case stated.

MACFARLANE, J.-This is a proceeding for the condemnation of the right of way for plaintiff's railway through the S. E. †, section 9, and a part of N. W., S. W., section 10, township 50, range 32 in Clay county, which belonged to defendant at the time the proceedings were instituted. The petition was filed on the 6th day of August, 1887. The petition, after stating the incorporation of plaintiff and defendant, that plaintiff was engaged in the construction of a railroad from Ottumwa, Iowa, to Kansas City, in a southwesterly direction through Clay county, and desired to procure the right of way therefor, that the road as located passed through the land of the defendant, describing the land, made the following averments: "That your petitioner desires to construct its road over the lands hereinabove described, of the defendant named herein, and for that purpose your petitioner desires to obtain the right of way, consisting of a strip, belt, or piece of land 100 feet in width extending over and across said lands, through the centre of which said strip, belt, or piece of land, the centre line of the railroad of your petitioner is now surveyed, located, and staked out, so as to leave one-half in width on each side of said center line. That your petitioner has not been able to acquire title to the land or right of way, for the reason that it and the defendant, the Randolph Town-Site Company, cannot agree upon the proper compensation to be paid. Your petitioner herewith annexes to this petition a plat or map showing the route of its proposed railroad over and across the lands herein described,