MT. SHASTA POWER CORP. v. DENNIS

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Docket Number

Civ. No. 2751.

Attorney(S)

W. B. Bosley, T. J. Straub and Chenoweth Leininger for Appellant. Carter Smith for Respondents.

Judges

FINCH, P. J. —

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Smart Summary

Factual and Procedural Background

This opinion concerns a motion to dismiss plaintiff's appeal from that part of the judgment fixing defendants' damages for the taking of their riparian rights. Plaintiff, Mt. Shasta Power Corporation, sought to condemn defendants' riparian rights in water to be diverted from Fall River. A jury returned a verdict fixing defendants' damages on September 15, 1922, and judgment was entered September 22, 1922. Plaintiff served notice of intention to move for a new trial the same day. On September 29, 1922, plaintiff paid into court the amount of the judgment and costs and filed a written statement asserting preservation of its rights to move for a new trial and to appeal. Defendants submitted affidavits alleging plaintiff diverted substantially all waters of Fall River on October 1–2 without consent; plaintiff countered with an affidavit of temporary diversions for testing with defendants' consent. By court order the money deposited was paid to defendants on October 9; defendants filed satisfaction of judgment October 20. On October 23 plaintiff moved for an order authorizing possession pending litigation, deposited an additional sum as required, and the court authorized possession. Plaintiff's motion for a new trial was denied December 18, 1922, and plaintiff served notice of appeal January 6, 1923. Defendants moved to dismiss the appeal on the ground that plaintiff waived its right to appeal by voluntary payment of the judgment and by taking possession and use of the condemned property.

Legal Issues Presented

Whether plaintiff's payment of the amount of the judgment (or deposit into court) and its taking possession of the condemned property constituted a waiver of plaintiff's right to appeal.
Whether plaintiff's payment and entry into possession were voluntary or compelled by statute or necessity, and if voluntariness affects the right to appeal.

Arguments of the Parties

Appellant's Arguments

Payment was not voluntary because section 1251 required payment within thirty days, and failure to comply exposed plaintiff to execution or extra damages under sections 1252 and 1255a.
Alternatively, practical necessity compelled payment and possession because plaintiff needed the water to operate its power plant and its losses from not operating would have greatly exceeded the judgment.
Plaintiff's deposit and accompanying statement preserved its rights to prosecute a motion for a new trial and to appeal.

Respondents' Arguments

Plaintiff waived its right to appeal by voluntarily paying the judgment and by taking possession, using, and appropriating the property for which compensation was paid.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Colusa etc. R. R. Co. v. Superior Court, 31 Cal.App. 746, 761 [161 P. 1011]	That an appeal within thirty days after entry of judgment would operate to stay issuance of execution or assessment of damages.	Used to show plaintiff could have appealed within 30 days to stay execution rather than pay; undermines claim that payment was compelled to avoid execution.
Steinhart v. Superior Court, 137 Cal. 575, 579 [92 Am. St. Rep. 183, 59 L.R.A. 404, 70 P. 629]	Compensation "is not paid into court for him until he can take it."	Cited in discussing constitutional requirement that just compensation be first made; supports that payment and possession are interdependent.
Los Angeles etc. Ry. Co. v. Rumpp, 104 Cal. 20 [37 P. 859]	Payment of the award and taking possession vests plaintiff in property and defendant in compensation; acceptance by defendant abandons defenses except claim for greater compensation; plaintiff is estopped to claim repayment if award is reduced on new trial.	Held controlling: payment and possession under statute estop the plaintiff from asserting a right to recover compensation on appeal; analogous facts and principles applied to dismiss appeal.
Cleveland, C., C. St. L. Ry. Co. v. Nowlin, 163 Ind. 497 [72 N.E. 257]	Indiana statute permitting possession upon payment and providing that appeal only affects amount of compensation.	Distinguished: statute differed materially from California's; cited to show other statutes permit review without affecting possession.
New Orleans Terminal Co. v. Fireman's Charitable Assn., 115 La. 442 [39 So. 437]	Louisiana statute required repayment or recovery of surplus if final decree changed the amount.	Distinguished: Louisiana statute expressly provided repayment or recovery of surplus, unlike California statute.
Fort Street Union Depot Co. v. Peninsular Stove Co., 103 Mich. 637 [61 N.W. 1007]	Michigan statute provided refund to company if amount diminished on review; difference to claimant if increased vs. diminished.	Distinguished: Michigan statute required refund if award diminished, unlike California law.
St. Louis, K. N.W. R. Co. v. Clark, 119 Mo. 357 [24 S.W. 157]	Missouri statute similar to Indiana allowing possession with payment and limiting effect of appeal.	Distinguished on statutory differences; cited among cases where statutory scheme permitted appeal without divesting possession.
St. Louis etc. R. R. Co. v. Aubuchon, 199 Mo. 352 [116 Am. St. Rep. 499, 8 Ann. Cas. 822, 9 L.R.A. (N.S.) 426, 97 S.W. 867]	Missouri authority analogous to Indiana on review affecting only compensation.	Distinguished for same reasons as other non-California statutes.
Madisonville, H. E. R. Co. v. Ross, 126 Ky. 138 [13 L.R.A. (N.S.) 420. 103 S.W. 330]	Kentucky statute conditioned possession on payment and contemplated a right of appeal notwithstanding payment.	Distinguished: Kentucky statute manifested an intent to allow appeal despite payment.
Chicago, S. F. C. Ry. Co. v. Phelps, 125 Ill. 482 [17 N.E. 769]	Owner had expressly agreed to refund compensation if judgment reversed.	Distinguished: agreement to refund is an exception not present in California case.
Kansas City Southern Ry. Co. v. Boles, 88 Ark. 533 [115 S.W. 375]	Payment into court under a mistake as to rights may preserve right of appeal.	Recognized as a factual exception where payment was made under mistake; not applicable here.
City of Rosebud v. Vitek (Tex.Civ.App.), 210 S.W. 728	Texas statute provided for return of excess to plaintiff if award paid exceeded final value.	Distinguished: Texas statute provided return of excess; unlike California statute.
Pyle v. Woods, 18 Idaho, 674 [111 P. 746]	Payment of an assessment by plaintiff was voluntary and plaintiff could not then force a jury trial; writ prohibiting further trial granted.	Cited as authority that voluntary payment followed by possession precludes later seeking trial on same issues; used to support dismissal where payment was voluntary.
Helm N.W. R. Co. v. Turner, 89 Miss. 334 [42 So. 377]	Under Mississippi statute, payment and entry into possession waived right of appeal.	Cited as consistent authority holding payment and possession waive appeal under statutes similar in effect to California's.
Mayor etc. of Jersey City v. Hamilton, 70 N.J.L. 48 [56 A. 670]	Payment and entry into possession result in waiver of appeal under the applicable statute.	Cited among other state cases holding payment and possession waive appeal where statute did not permit refund to plaintiff.
Oregon Electric Ry. Co. v. Terwilliger, 51 Or. 107 [93 P. 334, 930]	Under Oregon statute, payment and taking possession waive appeal where no refund provision exists.	Cited as supporting authority for waiver rule under statutes lacking refund provisions.
City of Portland v. Schmid, 82 Or. 465 [161 P. 560]	Or. authority consistent with waiver by payment and possession.	Included among cases concluding payment and possession effect waiver of appeal under similar statutes.
City of Spokane v. Cowles, 67 Wn. 539 [121 P. 463]	Washington authority concluding payment and possession waive appeal under comparable statute.	Cited to show uniform rule in several jurisdictions where statutes provide no refund to condemning party.

Court's Reasoning and Analysis

The court analyzed the question primarily by reference to the relevant sections of the Code of Civil Procedure (1251, 1252, 1254, 1255a, 1257) and controlling California decisions. The court observed that plaintiff could have appealed within thirty days to stay execution (citing Colusa etc. R. R. Co.), and that plaintiff had the statutory option of paying and taking possession or appealing and remaining out of possession. The court held that plaintiff's subjective necessities or intentions in paying did not determine the legal effect; the effect must be measured by the statute. The plaintiff could not, by its own statement, impose conditions on defendants' acceptance of money beyond what the statute allows; such a reservation of rights in the deposit was immaterial. The court noted the ordinary rule that voluntary compliance with a judgment and acceptance of its fruits are inconsistent with an appeal, and that by accepting payment a defendant abandons all defenses except a claim for greater compensation. Citing the constitutional provision concerning compensation and Steinhart, the court emphasized that there is no constitutional or statutory provision permitting the plaintiff to recover any part of compensation paid if a subsequent judgment awards a smaller sum. The court relied on Los Angeles etc. Ry. Co. v. Rumpp as controlling, which held that payment and possession vest rights and estop the plaintiff from reclaiming paid compensation on appeal. The court distinguished cases from other jurisdictions where statutes expressly allowed refund or limited the effect of payment on appeal, and cited additional authorities (including Pyle v. Woods and Helm N.W. R. Co. v. Turner) that support the rule that payment and possession constitute waiver where the statutory scheme does not provide for repayment to the condemning party.

Holding and Implications

APPEAL DISMISSED.

Direct effect: The court dismissed Mt. Shasta Power Corporation's appeal from the portion of the judgment fixing defendants' damages, concluding that payment of the judgment amount and taking possession under the statutory scheme constituted a waiver of the right to appeal. The opinion does not announce any broader new rule beyond applying existing California authority (notably Los Angeles etc. Ry. Co. v. Rumpp) and distinguishing statutes of other jurisdictions.

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MT. SHASTA POWER CORPORATION (a Corporation), Appellant, v. MALCOLM DENNIS et al., Respondents.

FINCH, P. J. —

This is a motion to dismiss plaintiff's appeal from that part of the judgment herein which fixes defendants' damages for the taking of their property for a public use.

The defendants are the owners of certain lands riparian to Pitt River. Fall River empties into Pitt River above these lands. Having determined to divert all of the water naturally flowing in Fall River to its hydro-electric power plant and thence convey the water to Pitt River at a point below defendant's lands, this proceeding was commenced for the purpose of condemning defendants' riparian rights in so far as the waters to be diverted from Fall River are material thereto. September 15, 1922, the jury returned a verdict fixing the amount of defendants' damages on account of the proposed taking. September 22, 1922, judgment was entered on the verdict. On the same day the plaintiff served and filed its notice of intention to move for a new trial. September 29, 1922, the plaintiff paid into court for the defendants the amount of the judgment and costs and, in connection therewith, filed a written statement as follows:

"To the Above-entitled Court and to Mr. S.W. Witherow, Clerk Thereof:

"Mt. Shasta Power Corporation, plaintiff in the above-entitled action, in compliance with, and for the purpose of preserving its rights under the final judgment of condemnation entered in the above-entitled cause . . . and Title 7, Part 3, of the Code of Civil Procedure of California herewith deposits in the above-entitled court, for the defendants above named, . . . the compensation awarded by said judgment to said defendants. . . . The said plaintiff, however, by depositing the aforesaid sums of money in said court for said defendants, as aforesaid, does so without prejudice to and without any intention on its part to waive its right to prosecute its pending motion for a new trial in the above entitled proceeding, or its right to appeal from said judgment."

From affidavits introduced by defendants in opposition to plaintiff's motion for a new trial, it appears that on the first and second days of October, 1922, the plaintiff "diverted substantially all of the waters of Fall River" to its power plant "without the consent or acquiescence of any of said defendants." Plaintiff introduced an affidavit to the effect that on the thirtieth day of September and on the first, second, and twenty-second days of October it "temporarily diverted some of the waters of Fall River" for the purpose of "testing out and adjusting the machinery in said power house," and other stated purposes, "with the consent and acquiescence of said defendants." October 9, 1922, the money deposited by plaintiff was, on the order of the court, paid to defendants. October 20, 1922, defendants filed a satisfaction of the judgment. October 23, 1922, plaintiff filed notice of motion for an order authorizing plaintiff to take possession of and use the property condemned, during the pendency of the action, and offer "to pay into court such further sum as may reasonably be required by the court as a fund to pay any further damages and costs that may be recovered in this proceeding, as well as all damages that may be sustained by the defendants, if, for any cause, the property shall not be finally taken for public use — all in accordance with the provisions of section 1254 of the Code of Civil Procedure. This motion will be made without prejudice to plaintiff's right to further prosecute its motion for a new trial now pending in the above-entitled court and cause, and also without prejudice to its right to take and prosecute an appeal from the judgment heretofore entered in said court and cause." On the same day the court made an order reciting that plaintiff had paid into court an additional sum of three thousand dollars as required by the court and authorizing plaintiff "to take possession of and use the property described in said judgment for the purposes stated in said complaint, during the pendency, and until the final conclusion of said action." No claim is made that the plaintiff has not been in possession of the property condemned since the making of the foregoing order. December 18, 1922, plaintiff's motion for a new trial was denied and on January 6, 1923, it served its notice of appeal. Defendants' motion to dismiss the appeal is made upon the ground that "plaintiff has waived its right to appeal from said judgment by the voluntary payment of the amount of said judgment, and by taking possession of and using and appropriating the property condemned in said action and for which the amount of said judgment was paid as just compensation." The following sections of the Code of Civil Procedure are applicable to the questions here raised: 1251: "The plaintiff must, within thirty days after final judgment, pay the sum of money assessed." 1252: "Payments may be made to the defendants entitled thereto, or the money may be deposited in court for the defendants, and be distributed to those entitled thereto. If the money be not so paid or deposited, the defendants may have execution as in civil cases." 1254: "At any time after trial and judgment entered or pending an appeal from the judgment, . . . whenever the plaintiff shall have paid into court, for the defendant, the full amount of the judgment, and such further sum as may be required by the court as a fund to pay any further damages and costs that may be recovered in said proceeding, as well as all damages that may be sustained by the defendant, if, for any cause, the property shall not be finally taken for public use, the superior court in which the proceeding was tried may . . . authorize the plaintiff . . . to take possession of and use the property during the pendency of and until the final conclusion of the litigation. . . . The defendant, who is entitled to the money paid into court for him upon any judgment, shall be entitled to demand and receive the same at any time thereafter upon obtaining an order therefor from the court. It shall be the duty of the court, or a judge thereof, upon application being made by such defendant, to order and direct that the money so paid into court for him be delivered to him upon his filing a satisfaction of the judgment, or upon his filing a receipt therefor, and an abandonment of all defenses to the action or proceeding, except as to the amount of damages that he may be entitled to in the event that a new trial shall be granted. A payment to a defendant, as aforesaid, shall be held to be an abandonment by such defendant of all defenses interposed by him, excepting his claim for greater compensation." 1255a: "Plaintiff may abandon the proceedings at any time after filing the complaint and before the expiration of thirty days after final judgment, by serving on defendant and filing in court a written notice of such abandonment; and failure to comply with section 1251 of this code shall constitute an implied abandonment of the proceeding. Upon such abandonment, express or implied, on motion of defendant, a judgment shall be entered dismissing the proceeding and awarding the defendant his costs and disbursements, which shall include all necessary expenses incurred in preparing for trial and reasonable attorney fees." 1257: "The provisions of part two of this code, relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this title, apply to the proceedings mentioned in this title; provided, that upon the payment of the sum of money assessed, . . . the plaintiff shall be entitled to enter into, improve, and hold possession of the property sought to be condemned . . . as provided in section twelve hundred and fifty-four, and devote the same to the public use in question; and no motion for a new trial or appeal shall, after such payment, . . . in any manner retard the contemplated improvement."

[1] Appellant contends that its payment of the damages awarded the defendants was not voluntary but that, under the provision of section 1251, herein quoted, it was compelled to make such payment within thirty days after final judgment, "as failure to comply with this provision would have subjected appellant to liability to execution, or to extra damages upon abandonment," as provided by sections 1252 and 1255a. An appeal by plaintiff, however, within thirty days after entry of the judgment would have operated to stay the issuance of execution under the provisions of the one section or the assessment of damages under the other. ( Colusa etc. R. R. Co. v. Superior Court, 31 Cal.App. 746, 761 [ 161 P. 1011].) [2] Plaintiff had the option of paying the damages awarded and taking possession or appealing from the judgment and remaining out of possession until the final determination of the compensation to be paid. Appellant further urges that it had theretofore acquired the rights of substantially all persons other than defendants in the water to be diverted, that it could not operate its power plant without such water, that its loss from failure to operate its plant would have greatly exceeded the amount of the judgment, and that, therefore, the payment of the compensation awarded and the entry into possession were not voluntary but compulsory and did not constitute a waiver of appeal. The fact that a party may find it more profitable to comply with a judgment and accept the fruits thereof than to suffer the losses incident to an appeal cannot be said to render such compliance compulsory. The necessities of the plaintiff and its intention in making payment and taking possession, however, are not decisive of the case. [3] In taking possession, the plaintiff was exercising a statutory right and the effect of its acts must be measured by the provisions of the statute. In taking the fruits of the judgment under the authority of the statute, the plaintiff could not impose conditions upon defendants' acceptance of the money paid which are not provided by the statute. [4] It is not perceived that the plaintiff's attempt to limit the effect of its payment and entry is material. Its statement, in connection with the payment of the money into court, that the same was deposited "without prejudice to . . . its right to appeal from said judgment" is of no value in determining the question of its right to appeal, a right which is wholly dependent upon the statute. [5] Ordinarily the voluntary compliance with a judgment and the acceptance of the fruits thereof by a party are inconsistent with a right of appeal by such party. By accepting the money paid into court in a proceeding in eminent domain, a defendant thereby abandons "all defenses interposed by him," excepting the one saved to him by the statute, "his claim for greater compensation." But for this saving clause, the acceptance of payment by a defendant of the amount awarded him as damages would be an abandonment of all defenses. The constitution (art. I, sec. 14) provides: "Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner." Such compensation "is not paid into court for him until he can take it." ( Steinhart v. Superior Court, 137 Cal. 575, 579 [92 Am. St. Rep. 183, 59 L.R.A. 404, 70 P. 629].) There is no provision, constitutional or statutory, giving a plaintiff the right to recover any part of the compensation so paid in the event of a judgment for a smaller sum upon a second trial. The facts involved in the case of Los Angeles etc. Ry. Co. v. Rumpp, 104 Cal. 20 [ 37 P. 859] differ from those in this, in that the defendant there appealed, after accepting the compensation paid into court by the plaintiff, and that "the payment of the money into court by the plaintiff was not accompanied by a motion for a new trial or notice of appeal, or other objection to the amount found by the jury." The grounds, however, upon which the decision is based are independent of such failure to appeal or object. Commencing on page 25, it is said: "It paid its money and took possession of the land condemned. . . . Upon payment of the money plaintiff acquired a vested right in the property, and the defendant a vested right in the compensation. . . . The abandonment by the defendant of all defenses except her claim for greater compensation confirmed plaintiff's right to the property, and estopped her from denying that right, and the plaintiff, we think, is equally estopped to say that the money received by the defendant is not hers. It is urged, however, that the appeal from the first judgment vacated it, and with it the finding of the compensation awarded to the defendant. But if that were true the plaintiff's right to the possession was swept away with the defendant's right to the compensation. Plaintiff's right to possession, depending, as it does under the Constitution, upon compensation first made, cannot exist without it. It is therefore clear that the appeal of defendant, accompanied by her abandonment of other defenses, did not, as in ordinary cases, vacate the judgment. Nothing that was in issue upon the first trial was in issue upon the second. The sole questions were, whether the defendant was entitled to 'greater compensation,' and, if so, how much additional compensation was she entitled to. The statute requires the court to pay to the defendant the damages awarded by the jury so deposited by the plaintiff, but makes no provision or requirement that any part of it under any circumstances shall be repaid. Under a statute of the state of New York containing a similar provision for the payment or deposit of the compensation for the land, etc., an appeal is provided for, and on such appeal a new appraisal may be ordered. . . . The statute then provides: 'If the amount of the compensation to be paid by the company is increased by the second report the difference shall be a lien on the land appraised, and shall be paid by the company to the parties entitled to the same, or deposited in the bank, as the court shall direct; and if the amount is diminished the difference shall be refunded to the company by the party to whom the same may have been paid.' . . . Under the above statute not only is the whole question of compensation set at large by the order for a new appraisement, but if the amount is reduced there is an express requirement that it shall be repaid, . . . whilst under our statute we find no requirement that anything shall be refunded."

In support of appellant's contention that payment of the damages awarded and entry into possession did not constitute a waiver of an appeal, Lewis on Eminent Domain (third edition), section 808, is cited. It is there said: "If the petitioner pays the damages awarded, this will, in the absence of any statute, waive an appeal, but the deposit of damages for the purpose of obtaining possession will not deprive the petitioner of the right of appeal." In support of the latter part of the statement the author cites cases from Indiana, Louisiana, Michigan, and Missouri. The statutes considered in those decisions were essentially different from those of this state. The Indiana statute authorized the plaintiff to take possession upon payment of the amount of the award and provided: "The award of said arbitrators may be reviewed by the circuit court . . . and the subsequent proceedings on the appeal shall only affect the amount of compensation to be allowed." ( Cleveland, C., C. St. L. Ry. Co. v. Nowlin, 163 Ind. 497 [72 N.E. 257].) The Louisiana statute provided: "In the event of any change being made by the final decree in the decision of the cause, the corporation shall be bound to pay the additional sum assessed, or be entitled to recover back the surplus paid, as the case may be." ( New Orleans Terminal Co. v. Fireman's Charitable Assn., 115 La. 442 [39 So. 437].) The Michigan statute provided that if the compensation "is increased by the second report the difference is to be a lien on the land appraised, and be paid by the company. If the amount is diminished, the difference shall be refunded to the company." ( Fort Street Union Depot Co. v. Peninsular Stove Co., 103 Mich. 637 [61 N.W. 1007].) The Missouri statute was similar to that of Indiana. ( St. Louis, K. N.W. R. Co. v. Clark, 119 Mo. 357 [24 S.W. 157]; St. Louis etc. R. R. Co. v. Aubuchon, 199 Mo. 352 [116 Am. St. Rep. 499, 8 Ann. Cas. 822, 9 L.R.A. (N.S.) 426, 97 S.W. 867].) The statute construed in Madisonville, H. E. R. Co. v. Ross, 126 Ky. 138 [13 L.R.A. (N.S.) 420. 103 S.W. 330], cited by appellant, provided: "When an appeal shall be taken . . . by the company, it shall not be entitled to take possession of the land or material condemned until it shall have paid into court the damages assessed and all costs." Here it clearly appears that the statute contemplated a right of appeal, notwithstanding the payment. In Chicago, S. F. C. Ry. Co. v. Phelps, 125 Ill. 482 [17 N.E. 769], the owner had expressly agreed to refund the money paid as compensation in the event of a reversal of the judgment. In Kansas City Southern Ry. Co. v. Boles, 88 Ark. 533 [115 S.W. 375], the plaintiff had paid into court the compensation awarded under a mistake as to its rights and it was held that, under such circumstances, plaintiff's right of appeal was not waived. In City of Rosebud v. Vitek (Tex.Civ.App.), 210 S.W. 728, the statute (art. 6530, Rev. Stats.) construed provided: "Where the award paid the defendant or appropriated by him exceeds the value of the property as determined by the final judgment, the court shall adjudge the excess to be returned to the plaintiff." No case has been cited or discovered which holds that the condemning party can recover any part of the compensation paid to the owner, in the absence of a statute expressly or by necessary implication authorizing such recovery.

In Pyle v. Woods, 18 Idaho, 674 [111 P. 746], the statute under consideration gave both parties the right to have the question of compensation determined by a jury, with the proviso that the condemning party might apply for the appointment of commissioners to assess such compensation, and that after the making of such assessment the plaintiff might have possession upon payment of the sum so assessed. The plaintiff caused the assessment to be made, paid the amount thereof into court, took possession of the property, and then sought to have defendant's damages fixed by a jury. In granting a writ prohibiting the court from proceeding with the trial the supreme court said: "After the assessment of damages by the commissioners the company was not obliged to pay the award if it was dissatisfied with the amount assessed but might have gone before the court and a jury and had the damages assessed in the usual way. The payment of the award made by the commissioners was wholly voluntary on the part of the plaintiff. . . . It would be trifling with justice and the rights of property owners to allow a company endowed with the power of eminent domain, to come into court, procure the appointment of commissioners, pay the award made into the court, take possession of the defendant's property, and thereafter put the defendant to the annoyance and expense of a trial before the court and jury when the defendant is already willing to accept the award which has been made and upon which plaintiff has taken possession of his property." In Helm N.W. R. Co. v. Turner, 89 Miss. 334 [42 So. 377], it was held that the plaintiff waived its right of appeal by payment of the award and entry into possession under a statute which provided: "Upon the return of the verdict and entry of the judgment if the applicant pay the defendant whose compensation is fixed by it, or tender to him the amount so found and pay the costs, he or it shall have the right to enter in and upon the land of such defendant so condemned, and to appropriate the same to the public use defined in the application." Under statutes of other states authorizing a condemning party to take possession upon payment of the award and providing that the plaintiff shall be required to pay any additional sum awarded the defendant upon a second hearing, but making no provision for a recovery by the plaintiff in the event of a diminished second award, it has been held that by payment and entry into possession the plaintiff waives the right of appeal. ( Mayor etc. of Jersey City v. Hamilton, 70 N.J.L. 48 [56 A. 670]; Oregon Electric Ry. Co. v. Terwilliger, 51 Or. 107 [93 P. 334, 930]; City of Portland v. Schmid, 82 Or. 465 [161 P. 560]; City of Spokane v. Cowles, 67 Wn. 539 [121 P. 463].) The foregoing decisions are all in harmony with what is said in Los Angeles etc. Ry. Co. v. Rumpp, supra, and that case must be held to be controlling here.

The appeal is dismissed.

Hart, J., and Plummer, J., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 12, 1924.

All the Justices concurred, except Lennon, J., and Richards, J., who dissented.