fifteen, township one south, range three east, in Multnomah county, Oregon; that upon said date the plaintiff, then Priscilla Duvall, joined with her husband, 'Davis Duvall, in a conveyance of land in which said forty-acre tract, the land in dispute, together with other property, was deeded to one Tomlinson; that the said forty-acre tract was included in said conveyance by mistake of both parties, the intention of all parties being to convey only the land of Davis Duvall; and that the plaintiff joined in said deed solely for the purpose of barring her dower, the intention being to further vest in said Tomlinson the west half of the northwest quarter of said northeast quarter section, which he had purchased, and by similar mistake the said twenty-acre tract was not so conveyed; that no consideration was paid plaintiff or her said husband for said forty-acre tract deeded to Tomlinson, and that said twenty-acre tract was occupied by Tomlinson thereafter, and has not been in the occupation of plaintiff since said conveyance, and the said mistake was not discovered by plaintiff or any one until about the year 1874; that in July, 1874. the said Tomlinson died, leaving minor children surviving him, none of whom are of age; that on the ninth day of May, 1882, a guardian's deed was made to the defendant Metzger, of said premises, under a sale previously made by the guardian of said minors, under an order of the county court, and the said guardian's deed was placed upon record before the commencement of this suit; that the said defendant, Metzger, had actual notice of the claim of plaintiff to said land, before purchasing at said guardian's sale, and that the plaintiff is the owner as to said defendants of said real estate, and that the defendants have no right, title or interest therein or thereto; that from and after said conveyance to said Tomlinson, the plaintiff and her husband continued to cultivate said portion of said fortyacre tract, lying within her enclosure; and the plaintiff has continued in the occupation and cultivation thereof up to the present time, and has cut timber and sold timber from said forty-acre tract within four or five years after said conveyance was made; that all of said acts of ownership of said land by the plaintiff were done under the claim of ownership of all of said land adversely to all persons, and the said acts and the claim of ownership were open and notorious, and were well known to said Tomlinson during his lifetime. These facts as found, we think, are substantially sustained by the evidence,

The suit is based upon two grounds, either of which, it is contended, entitles the plaintiff to the relief prayed for. Upon the first ground, the plaintiff claims the legal title to the forty-acre tract of land in dispute, by reason of adverse possession under a claim of title, and insists that being in possession of the premises, and invested with the title by operation of the statute of limitations, and the defendants claiming some interest therein adverse to her, she is entitled to the relief

sought. On the other hand, it is contended that the statute of limitations does not vest the title in the person who holds the lands under it-that it affects the remedy only and not the right, and that plaintiff, not having the legal title, has no standing ground upon which she can maintain this suit. In support of this position, we are referred to Goodwin v. Morris, 9,Ore., 322, and Myers v. Beal, 5 Ore., 130. But neither of these cases were actions or suits concerning title to real property; and as to actions of tort or upon contract, as decided in those cases, the law seems to be that the statute bars the remedy only.

But the question here directly is, whether our statute bars the right, and vests the title in the party who brings himself within its provisions. If it does, then it is conceded that the suit may be maintained.

This question has been very ably and thoroughly examined and answered by Mr. Justice Sawyer in Arrigton v. Liscom, 34 Cal., 380. In that case the suit was as here, to quit title, and after an elaborate review of authorities, the result reached was that adverse possession for the full period limited by the statute confers title, and that it is such title as entitles the holder to all the remedies to quiet his possession that are incident to possession under written titles. In the course of his opinion, he said: "Some recent statutes provide in express terms that adverse possession for the time prescribed shall extinguish adverse titles and vest the possessor with the fee. Ours contains no such express provisions, but is not that the effect of our statute when properly construed? Angell says, in the language of Mr. Chancellor Harper, in Drayton v. Marshall, 1 Rice's Eq., 385, 'The belief is that no case can be put in which a private individual knows that another person claims, and is in the actual enjoyment of land which belongs to him, and neglects to prosecute his rights at law. when there is nothing to prevent his doing so, that he will not be barred by the statute of limitations:' Angell on Lim., 397, § 2. And Angell further says: 'It is also unquestionable that where the land has been held under a claim to the fee, for the time prescribed by the statute, and an entry is made by the party who has the written title, such party may be dispossessed by an ejectment brought by him who has so held and claimed:' Id., 398, § 2. This was so held in Jackson v. Oltz., 8 Wend., 440. The lessor of the plaintiff had been in possession for the period prescribed by the statute, claiming title under a patent. Defendants afterwards entered and held under a title which had been judicially determined to be valid. The action was brought by the plaintiff's relying on the title acquired by adverse possession, against the defendants holding such paper title, and a recovery had. The court say: 'If the possession was adverse, and had been so for more than twenty years, as it had in this case, then the possession ripened into a title, and the plaintiff must

6

recover against the defendant, though the paper title to the fifty acres is, in reality, not in him.' The same principle is recognized in Jackson v. Dieffendorf, 3 John., 269. And in Jackson v. Rightmeyer, 16 John., 327, Mr. Chancellor Kent says that showing a possession of thirty-eight years under a claim of right was showing an absolute right of possession sufficient to toll an entry. Our statute of limitations relating to real estate is copied from the statute of New York with but slight verbal changes; and we are not aware of any provision in the statute of New York which would affect the construction on this point. In Bradstreet v. Huntington, Mr. Justice Johnson says that an adverse possession, when it actually exists, may be set up against any title whatsoever, either to make out a title under the act of limitations or to show the nullity of a conveyance executed by one out of possession. On the first two of the propositions there can be no doubt, and none has been expressed: 5 Peters, 438. And in Drayton v. Marshall, Mr. Chancellor Harper says: "The time then required to mature a title by the statute of limitations had run out more than five times before the filing of this bill:" 1 Rice's Eq. 384. And again: But if, by the statute, the defendants have acquired a title to the fee, they can, of course, have no right of redemption against themselves. This must be merged or extinguished in the fee:' Id., 386. These remarks all go upon the idea that adverse possession for the time prescribed confers upon the possessor some interest, some positive right; that it affords him something more than a shield-in short, invests him with title. In Le Roy v. Rogers, 30 Cal., 234, we said: 'Rogers' title, thus acquired by adverse possession, the claimants under the patent having a right of action and being under no disability, could not be impaired by an entry by them claiming under the patent, unless made in pursuance of a judgment to which Rogers was a party or privy.. So in Taylor v. Horse, 1 Bun., 119, Lord Mansfield said, 'Twenty years' adverse possession is a positive title to the defendant. It is not a bar to the action or remedy only, but it takes away the right of possession.' To the same effect are Stokes v. Berry, 2 Salk., 421, and Pedark v. Searle, 5 S. & R., 239. In Leffingwell v. Warren, 2 Black., 605, the Supreme Court of the United States says: 'The lapse of time limited by such statutes not only bars the remedy, but it extinguishes the right, and vests a perfect title in the adverse holder.' So in School Dist. v. Benson, 31 Me., 384, the court say: 'A legal title is equally valid, when once acquired, whether it be by disseizin or by deed; it vests the fee simple, although the mode of proof, when adduced to establish it, may differ. When the title is in controversy, it is to be shown by legal proof, and a continuous desseizin for twenty years is as effectual for that purpose as a deed duly executed. The title is created by the existence of the facts, and not by an exhibition of them in evidence. An open, notorious

*

exclusive and adverse possession for twenty years would operate to convey a complete title to the plaintiffs, as much so as any written conveyance. And such title is not only an interest in the land, but it is one of the highest character, the absolute dominion over it, and the appropriate mode of conveying, is by deed.' See, also, Barnish v. Thompson, 7 Term R., 492; Beckford v. Wade, 17 Ves., Jr., 87; Moore v. Luce, 29 Pa. St., 260; Thompson v. Green, 4 Ohio St., 223; Newcombe v. Leavitt, 22 Ala., 631; Chiles v. Jones, 4 Darr, 483."

And again: "Whatever may be true of personal contracts, it certainly cannot be said with reference to reality, in view of the authorities cited, that the statute only takes away the remedy, or that a right, a title, is not practically extinguished by one party and acquired by another. The five years' adverse possession, practically at least, is conclusive evidence of title in the possessor, and if conclusive evidence of title in him, it must be as conclusive of no title in the other. What is the legal definition of title to land? A title is thus defined by Sir Edward Coke: Titulus est justa causa possidendi id quod nostrum est; or it is the means whereby the owner of land has just possession of his property: 2 Black. Com., 195. If this definition presents the true idea of title, then, when a party's means of obtaining possession, or maintaining possession when obtained, have been extinguished by adverse possession, it would seem to follow that his title is effectually and substantially extinguished in fact, whatever his condition theoretically may be. And the party who has acquired an absolute right of possession, which will not only shield him in his possession against the attacks of all the world, but, when ousted, will restore him to, and protect him in, his just possession, even against the party having the written title, would seem to have a substantial title. We can see no reason why, for all practical purposes, such a party's title should not be regarded, both in law and equity, as good as though he also had a perfect written title; and we are dealing with practical, and not merely theoretical questions. If a party's right of possession has become absolute, has by long adverse possession ripened into what may as well and as properly, for practical purposes, be called title as anything else, so that he can maintain his possession, or recover it when ousted, or maintain all actions for injuries to it against the party having the written title, in all respects in the same manner and to the same extent as against parties who never were other than entire strangers to the premises; if the party having the written title has lost, by the adverse possession, all means of recovering or protecting a possession when acquired without action, and all means of establishing or maintaining any right against the adverse possessor, we can perceive no good reason why such adverse possessor should be annoyed by pretended claims, or have the value of his possession diminished by an apparent title

which has lost its vitality. We see no good reason why the party whose adverse possession has practically ripened into a title should not be entitled to all the remedies to quiet his possession that are incident to possessions under written titles, which are, in law and equity, no more efficacious to protect the owners in the actual enjoyment of their possessions under them. Statutes of limitation are said to be statutes of repose. If so, they should be so construed and administered with respect to cases falling within their purview as to afford complete, not merely partial, repose."

To the same effect is the case of Pendleton v. Alexander, 8 Cranch, 462. The action was by the party in adverse possession against the other claimants out of possession, and a decree establishing title and granting affirmative relief quieting it was rendered, based upon a title acquired by adverse possession Mr Chief Justice Marshall said: "The appellant's title being secured by possession of more than fifty years, is unquestionably good, and it is proper that the doubts that hang over it should be removed." The statute under which this was done only purported by its terms to bar the remedy; it did not provide that the title of the owner should be extinguished, or that the possessor should be invested with a title. In Sherman v. Kane, 86 N. Y. 64, it is held, where title to land has been acquired by twenty years' adverse possession, it is equally as strong as one obtained by grant, and it is not forfeited by an intermission of the actual occupation thereafter. The court say: "If the title had been acquired by grant, such an act could not affect or invalidate it, and as title by adverse possession is equally strong as one obtained by grant, no reason exists for making an exception against the latter. A perfect answer, also, to the position of the learned counsel is, that the city had title by adverse possession, and that title continued after it had become perfect and complete, without regard to the interruption of the actual occupation or possession."

It thus appears that adverse possession for the time prescribed vests a perfect title in the possessor as against the former holder of the title and all the world; and that he is entitled to all the remedies at law or in equity which are incident to possession under written titles. See, also, Jones v. Brandon, 69 Miss. 586; Hinchman v. Whetstone, 23 Ill. 189; 3 Wait's Actions and Defenses, 19; Cannon v. Stockman, 36 Cal. 541. It is hardly necessary to review in detail the testimony. It shows satisfactorily to us that the possession of the plaintiff has been adverse, exclusive, unbroken, open and notorious. She has always claimed to be the owner, and as such she has paid the taxes on this land, erected a building on it, set out fruit trees on it, grubbed and cleared part of it, seeded it with timothy and clover, cut hay off it, made and changed fences on it, used firewood from it, sold shingles and rail timber off of it, some seasons cultivated it and in all these various

ways actually possessed and exercised acts of ownership over it.

Upon the second point, upon which it is claimed the plaintiff is equally entitled to the relief asked, the conclusion above reached renders it unnecessary to pass further than to remark that the case cited in School District v. Wrabeck, 31 Minn. 77, seems to sustain the view urged by counsel for plaintiff.

The decree of the court below must be affirmed.

NOTE. Titles by Limitation.-The statute of Limitation in relation to adverse possession of real property, was considered, at an early time, to operate upon the remedy merely, leaving untouched the title of the disseizee. (Angell Lim. § 7.) But even so early as the time of Lord Holt it was held that possession for twenty years under the Stat. 21 Jas. I, was "like a descent at common law, which tolls the entry," Stocker v. Berney, 1 Ld. Raym. 741. And in time it became established that the title of the former owner becomes extinguished; or, according to some cases, transferred-by force of statute, in favor of the disseisor holding adverse possession for the period prescribed. “Every scintilla of right is lost to the former owner, unless the case is brought within one of the exceptions of the statute:" per Ld. Chan. Sugden, Incorp. Irish Soc. v. Richards, 4 Irish Eq. R. 177, 199; Taylor v. Horde, 1 Burr. 119; 3 Wash. R. P. 163, 164; Tiedeman R. P. § 717.

It is also established both in England and America that the title of the disseisor, after the lapse of the statutory period is not only of such nature as may serve as a defense, but is sufficient to maintain ejectment upon: Pederick v. Searle, 5 Ser. & Raw. 236; Blair v. Smith, 16 Mo. 273; Armstrong v. Risteau, 5 Md. 256; Denn v. Barnard, Cowp. 597. Such a title is good against all the world: Biddle v. Millon, 13 Mo. 341. "A legal title is equally valid when once acquired, whether it be by disseisen or by deed, it vests the fee simple, although the modes of proof when adduced to establish it may differ. Nor is a judgment at law necessary to perfect a title by disseisin any more than by deed. In either case, when the title is in controversy, it is to be shown by legal proof, and continued disseisin for twenty years is as effectual for that purpose as a deed duly executed. The title is created by the existence of facts, and not by the exhibition of them in evidence:" School Dist. No. 4 in Winthrop v. Binson, 31 Me. 384. Hence such a title is not transferrable by parol: Winthrop v. Benson, supra; nor can it be lost by abandonment for less than the statutory period: Tiedeman, R. P. § 740, "One having such a title may go out of possession, declaring he abandons it to the former owner and intending never again to make any claim to the land, and so may the person holding an undisputed title by deed; but the law does not preclude them reclaiming what they have abandoned in a manner not legally binding upon them." Winthrop v. Benson, 31 Me. 384. Title by adverse possession for the statutory time has been regarded so perfect that, according to Lord Chancellor Sugden, a court of equity will compel specific performance of contract for purchase; he observes, in Scott v. Mixon, (3 Drury & Warren 388, 405): "the case then is reduced to a simple question of law, can this court compel a purchaser to take a title depending upon parol evidence of adverse possession under the new statute (of limitation, 3 & 4 W. IV)? Under the old statute it was long undecided whether a purchaser would be forced to take such a title, but ultimately it was so determined, and I apprehend that it is a clear title just as good as any

other title might be acquired by adverse possession, and that a purchaser would be bound to take such a title the statute (3 & 4 W. IV) does not operate by a mere bar of the remedy * *it bars the es

tate itself; and if so, where can the right be but in the person whose possession the statute prevents from being interrupted."

Until the statutory period has elapsed, "the disseisor, by his disseisin, gains a mere naked possession:" 2 Blk. Com. 198. It does not become an estate until limitation has expired: Chilton v. Wilson, 9 Hump. 399. Such an interest may be lost by abandonment, or may be transferred by parol, without deed: Winslow v. Newell, 19 Vt. 169. When, therefore, one disseisor transfers his interest to another the latter acquires merely the naked possession and the right to tack the time of the former disseisor to his owner for the purpose of eking out the period of limitation: 26 L. R. 95. It is not a title in the sense used by Blackstone: "The means whereby the owner of land has a just possession of his property." 2 Com. 195. But the right to tack the time of successive disseisors only arises where they hold in privity and the successive possessions are connected and continuous; otherwise the possession of each will be a distinct disseisin for all purposes and in the interval the seizin of the true owner will be restored, and the right to tack lost. "No more is necessary than that it (the disseisin) be not broken during the period; and for the purpose of tacking conveyances between subsequent occupants operate to hinder it from falling back in contemplation of law through those real or imaginary intervals that would otherwise occur betwixt the relinquishment of the one and the entry of the other:" Parker v. Southwick, 6 Watts 378. There is privity of possession, but no privity of title between successive disseisors, because the title is in the true owner or original disseisee until limitation has expired, and therefore title does not run back through the disseisors; but the only privity of title arises between the last holder and the original disseisee, and this arises when on the expiration of limitation the title is lost to the latter and conferred upon the former. 26 L. R. 97; Comstock v. Smith, 13 Pick. 119.

Whether the statute transfers title from disseisee to disseisor, or creates a new and distinct title is a question of much difficulty. Mr. Tiedeman says: "The statute may have the effect of destroying the title of the owner altogether and for all purposes, but it cannot be said to transfer it to the disseisor." Real Prop. 717. On the other hand Sugden regarded the title as transferred from the person who lost it, to the person gaining it. Incorporated Irish Soc. v. Richards, 4 Irish Eq. Rep. 179; Scott v. Mixon, 3 Drury & War. 388, 405.

Baron Park observes that the limitation operates as "a parliamentary conveyance of the land to the person in possession:" Jenks v. Sumner, 14 Mes. & W. 39. And Gibson, C. J., forcibly observes the effect of the statute is to transfer the title lost, and not to confirm the title gained: "Parker v. Southwick, 6 Watts 378. "Title by disseissin", is sometimes applied to the imperfect right gained by disseisin merely and at other times it is applied to the perfect estate which arises after limitation period has expired; care should be observed as to the sense in which it may be used, otherwise greater confusion may appear than really exists. St. Louis, Mo. G. D. BANTZ.

1. BANKRUPTCY. [Contract-Fraud.] Promise to Pay Creditor in Full in Consideration of Assenting to Discharge, Fraudulent and Void.-If a bankrupt debtor,orally promises to pay a creditor's debt in full, if the creditor will sign and assent to his discharge and enable him to obtain it, and if the debtor, after having thus obtained his discharge, in execution of his original oral promise, gives a written promise to pay the debt, such written promise is void. The oral promise was void under the bankrupt law, because not in writing (U. S. R. S. § 5131; Blasdel v. Fowle, 120 Mass. 447; Dexter v. Snow, 12 Cush. 594), and also because it was in fraud of the bankrupt's creditors, and the subsequent oral agreement was tainted with the original fraud. Tirrell v. Freeman, S. C. Mass., May 1885; 1 N. E. Repr. 350.

2. BILLS AND NOTES. [Promissory Note.] Endorser Liable where Maker is a Fictitious Person.The payee and indorser of a negotiable promissory note is liable as maker, where he knows the maker is a fictitious person; and if he were to be regarded as an indorser, he would be liable on his indorsement without demand or notice. [Citing 1 Pars. Bills, and Notes 559, 560]. Bundy v. Jackson, U. S. Cir. Ct. E. D. Ark., Aug. 10, 1885; 24 Fed. Repr. 628.

3. CONSTITUTIONAL LAW. [Obligation of Contracts.] Validity of Legislative Exemption from Taxation. Legislatures, unrestrained by some constitutional limitation, have full power to provide, in an act creating a corporation, for an exemption of its property from taxation; and such a provision in the charter of a corporation constitutes a contract which the. State may not subsequently impair. [Citing Humphrey v. Pegues, 16 Wall. 249; Wilmington v. Rich, 13 Wall. 264; Knoxville, etc., R. Co. v. Hicks, 9 Baxter (Tenn.) 442]. East Tenn. etc., R. Co., v. Pickerd, 24 Fed. Repr. 614.

4.

5.

[Judicial Sale.] Such Exemption a Vendible Commodity.-The legislature of Tennessee had constitutional authority, after 1870, to provide by law, a remedy whereby an outstanding vested franchise, including, among other privileges, an immunity from taxation, could be subjected to a judicial sale for the payment of the just debts of its owner, and for the transfer of the same, in connection with a conveyance of the property, to which it was appurtenant, to a purchaser. [Distinguishing Memphis etc. R. Co. v. Railroad Comr's, 112 U. S. 609; 5 U. S. Sup. Ct. Repr. 299]. Ibid.

[Taxation.] To Pay Bounties to Soldiers. While it is competent for the legislature to pass a law authorizing municipal corporations to levy taxes for the purpose of raising money to pay bounties to encourage soldiers to enlist for the public defense. (Lowell v. Oliver, 8 Allen, 247; Freeland v. Hastings, 10 Ib. 570). Yet it is not competent for the legislature to confer power upon the municipal corporation, to lay a tax for the purpose of paying the bounty to soldiers for past services. Such a tax is laid for a private, and not

for a public object. [In giving the opinion of the court it is said by Morton, C. J.: "In the case at bar it seems to us clear that the object for which the town of Acton has raised this money is private and not public. The town had made no promise to these soldiers, and is not under any obligation to pay them any bounties. The purpose is not to repay any sums advanced them as an inducement to enlist. The bounty to be paid cannot be regarded in the light of compensation for services rendered; for their services as soldiers were not rendered to the town, and the town had nothing to do with their compensation. The war has been over for many years, and the payment of the bounties cannot encourage enlistment, or in any way affect the public service or promote the public welfare. The direct primary object is to benefit individuals and not the public. In any view we can take of the statute, the payments it contemplates are mere gratuities or gifts to individuals. The principle would be the same if a town should vote a gratuity or a pension to one who had rendered service as an officer, or was in any way entitled to its gratitude. This a town has not the power to do, even with the sanction of the legislature. A statute conferring such power is unconstitutional, because it authorizes raising money by taxation for the exclusive benefit of particular individuals, and appropriates money for a private purpose, which can only be raised and used for a public object. The right to tax is the right to raise money by assessing the citizens for the support of the government and the use of the State. The term 'taxation' implies the raising of money for public uses, and excludes the raising of money for private use. Lowell v. Boston, 111 Mass. 454; Freeland v. Hastings, 10 Allen, 570; Allen v. Jay, 60 Me. 124; Perkins v. Milford, 59 Me. 315; Thompson v. Pittston, 59 Me. 545; Taylor v. Thompson, 42 Ill. 9; Crowell v. Hopkinton, 45 N. H. 9; Speer v. School Directors, 50 Pa. St. 150. For this reason, without considering the other objections urged by the petitioners, we are of opinion that the statute in question, so far as it gives authority to pay bounties to the soldiers embraced in its terms, is unconstitutional and void."] Mead v. Inhabitants of Acton, S. C. Mass., 1885; 1 N. E. Repr. 413.

6. CORPORATIONS. [National Bank. Sale of its Stock to its own Officers when Valid by Estoppel. -The sale which § 5201, Rev. Stat., requires a national bank to make of its own stock, is real and not fictitious. And where the president and cashier of a national bank, which is the owner of some of its own stock, purchase such stock, and execute their note to the bank for the purchase money, in a suit against them on the note, by the receiver of such bank, they are estopped to set up as a defense that their purchase of the stock was unauthorized, or that their purchase was merely colorable, or to avoid a forfeiture of the bank's charter, or for any other deceptive or illegal purpose. Bundy v. Jackson, U. S. Cir. Ct. E. D. Ark., Aug. 10, 1885; 24 Fed. Repr. 628.

a debt previously contracted. In the one case the sale of the stock is enjoined by law, and its sale by the president may be ratified, however irregular it may bave been in the first instance; but the purchase of its own stock by the bank is interdicted by law, and for this act there can be no authorization in advance, and no ratification afterwards. Ibid.

8. EMINENT DOMAIN. [Railway Companies-Trespass-Nebraska Statute.] Payment must precede Taking, or Company a Trespasser.—While the Nebraska statute authorizes a railroad corporation to go upon the land of an individual, if need be, and locate its line of road over such land, and permits either the corporation or the land-owner to institute proceedings to condemn the right of way, yet before the corporation can appropriate such right of way by entering upon the land and constructing its road across the same, the damages must have been appraised, and the amount thereof paid to the land-owner or deposited with the county judge. If the damages are not awarded and deposited, the corporation is liable in trespass. [In the opinion of the court by Maxwell, J., it is said: "Our statute in effect provides that a railroad company may, if need be, go upon land of another and locate its line over it; but before it appropriates the land to its own use it must pay to the land-owner, or deposit with the county judge, the amount of the award made by the commissioners. The proceedings to condemn may be instituted by either the land-owner or the corporation, but the award must be made, and the money paid or deposited, before the corporation has any legal right to appropriate the property. Omaha & N. W. R. Co. v. Menk, 4 Neb. 21; Ray v. Atchison & N. R. Co. Id. 439. If this is not done, an action for injury to the possession will lie, because the corpora-· tion has no legal right to the possession of the premises. Payment for the property appropriated must precede, or at least be concurrent with, the appropriation of the property. The statute, while it authorizes the corporation to condemn such property as it may require for the construction of its road, protects the citizen as well by requiring just compensation to be made therefor. The law does not require the citizen to institute proceedings to protect his rights, but merely permits him to do so. Constitutional guaranties of the rights of property would be of very little value if a corporation could seize the property of an individual and say to the owner, 'If you want compensation for this property, institute proceedings to condemn it, and after we think the proper amount is awarded we will pay you.' Where the assent of the owner is not obtained, the corporation must pay the condemnation money before it acquires the right to construct its road across the land of another. In other words, the property of citizens cannot be appriated for public use until the condemnation money is deposited with the county judge for the use of the owner. This money presumably represents the damages which the land owner has sustained by the location of the road across his premises. If the sum awarded is insufficient, or in excess of the actual injury sustained, either party may appeal to the district court, where the question of damages will be tried de novo. But the appeal does not excuse the failure to deposit the amount of the award. Ray v. Atchison & N. R. Co. 4 Neb. 439. Thus, in the case cited, the Burlington & Southwestern Railroad Company condemned the right of way across the plaintiff's land,