#### Stolze and wife, Appellants, vs. Milwaukee & Lake Winnebago Railroad Company and others, imp., Respondents.

*January 9*—

January 28, *1902.*

*Railroads: Eminent domain: Condemnation proceedings: Award of*. *commissioners: Deposit with clerk: Diversion by depositor or its creditors: Statutes: Practice: Satisfaction of judgment: 'When title to condemned property vests: Constitutional law: Just compensation, when includes ‘taxable costs and disbursements: Insufficient deposit: Injunction: Pleading: Interest.*

1. Money deposited with the clerk of the circuit court under secs. 1850, 1851, Stats. 1898, to cover an award of commissioners in condemnation proceedings, cannot he diverted from the purpose thereof hy the depositor or its creditors. It must remain subject to the order of him for whom it was deposited' until he may choose to claim it in the manner prescribed by such sections.

' 2. The way money must be paid or tendered in condemnation proceedings, to satisfy the obligation of the party seeking to ob*45tain property by right of eminent domain, is governed by statute, not by common-law rules.

3. The final award in condemnation proceedings having been made by a judgment on appeal from the award of commissioners, the formal extinguishment of such judgment is not a condition precedent to the acquirement of the rights sought to be obtained. The payment, in the manner indicated by statute, of money sufficient to satisfy the constitutional guaranty of a just compensation to the landowner for his property, taken or damaged, is all that is necessary.

4. By payment, in the manner indicated in the statute, of the sum of money required to compensate a landowner for his property, taken or damaged by the right of eminent domain, a judg-i ment finally determining the amount of such compensation is-thereby paid, and satisfaction thefeof becomes a matter which may be accomplished in any manner provided by law for obtaining satisfaction of record of a paid judgment.

5. The sum of money to cover an award in condemnation proceedings, or a receipt showing payment thereof to the party entitled thereto, must be deposited in the office of the clerk of the circuit court where the report of the commissioners was filed and recorded, and the facts in that regard be noted by such clerk at the foot of such record, to fully vest the title to the right sought to be acquired in the party seeking to obtain the same, regardless of whether the award as finally made is in the form of a judgment rendered in another county to which the condemnation proceedings were removed for trial on appeal from the first award.

6. Since private property cannot be taken by the right of eminent domain without just compensation therefor being first ascertained and paid to the owner or deposited in court for his use, the statutes designed to accomplish such ascertainment and payment must be construed so as to fully satisfy the constitutional guaranty in that regard or be held void.

7. A just compensation for property taken by the right of eminent domain, within the meaning of the constitution, includes such reasonable costs and disbursements as are taxable in favor of a prevailing party in similar proceedings incurred by the property owner in securing both the ascertainment and payment of such compensation.

8. Costs incurred by a property owner in fruitless endeavors to collect his award in condemnation proceedings, which are ordinarily taxable in favor of a judgment creditor under similar circumstances, must be paid to him as part of the compensation for his property taken or damaged.

*469. I£ a party, seeking to acquire property by the right of eminent domain, deposits money covering the award of the commissioners pursuant to sec. 1850, Stats. 1898, but neglects to pay or deposit, in the manner required by the statute, the additional sum of money awarded to the landowner by the judgment on appeal, or to pay the reasonable costs incurred in fruitless endeavors to collect such judgment, and such costs incurred, if any, in an equity action to restrain the use of the property involved until after just compensation is paid, and while such equity action is pending he pays into court where the report of the commissioners was recorded, money, sufficient with the first deposit to cover the face of the judgment and interest thereon up to the time of such payment, such payment alone will not satisfy the right of the owner of the property to á just compensation therefor.

.10. If the facts as to payment as aforesaid be pleaded in the equity action by supplemental answer as a defense and be established, even if the amount paid were all the landowner was entitled to receive, that would not show extinguishment of the cause of action from the beginning, the plaintiff not having accepted the money or done anything indicating assent to the payment into court as a settlement of his suit. In such circumstances the rule has not been applied that a cause of action which has been extinguished during the pendency of a suit to enforce it cannot be the basis of a judgment for costs.

11. In the situation indicated in No. 9, if the party seeking to acquire property desires to submit to and satisfy the condition precedent thereto and stop the litigation, it should pay, in the proper way, sufficient money to cover the face of the judgment and interest, the costs ordinarily recoverable in proceedings to enforce payment of a judgment, and the costs of the equity action up to the time of such payment; and for the purpose of determining the amount required therefor the costs should be ascertained by proper proceedings in the equity action.

12. Where the right is sought, by sovereign authority, to take or damage private property, the owner thereof may refuse to accept money deposited to satisfy his award in condemnation proceedings till the whole amount to which he is entitled shall have been so deposited, and claim interest on the award as first made from the date thereof to such time.

[Syllabus by Mabshaxl, J.]

Appeal from a judgment of tbe circuit court for Manito-woc county: Michael KiewaNj Circuit Judge.

*Reversed.*

*47Action to restrain a railway company from appropriating tlie plaintiff’s lands, by -right of eminent domain, till compensation therefor should be paid as required by law. The facts are as follows: The Manitowoc Terminal Company ■duly instituted proceedings to acquire, for railway purposes, certain lands owned by plaintiffs, in which such action was duly taken that April 3, 1895, an award was made t@ plaintiffs of $1,766 as a just compensation for their property, the award being duly filed on said day. On the same day the amount of the award was duly deposited by the railway corporation in the office of the clerk of the circuit court for Manitowoc county, where the report of the commissioners was filed, and thereupon the property involved was appropriated by the railway company by the construction of its railway track thereon. Both parties to the proceedings seasonably appealed from the award, the appeal of the plaintiffs being taken April 3, 1895. The appeals were consolidated and in due form of law removed to the circuit court for Brown county for determination, where the trial was had, the result being that plaintiffs were awarded $9,000. Judgment was entered accordingly for $9,336.29 damages and costs, from which an appeal was taken to this court, resulting in an af-firmance June 23, 1898. *Stolze v. Manitowoc T. ' Go.*100 Wis. 208. A transcript of the judgment rendered in the trial court was filed in the office of the clerk of the circuit court for Manitowoc county July 1, 1897, and an execution was issued from the circuit court for Brown county for the collection thereof, which execution was returned unsatisfied. Subsequently a special proceeding was instituted by plaintiffs to sequestrate the assets of the corporation under sec. 3216, Stats. 1898, in which a receiver of the terminal company was appointed. Plaintiffs were unable, by means of such proceeding, to obtain satisfaction of their judgment or any part thereof. October 23, 1899, lipón due notice to the uarties *48interested, tbe costs in sucb special proceedings were duly taxed by tbe court at $810.36, tbe expenses of tbe receiver being included therein. Tbe notice of tbe taxation of costs was in form for a taxation of tbe costs, fees and disbursements of tbe receiver. In tbe taxation proceeding, upon' proofs made to tbe court, costs were taxed, including all tbe expenses incurred subsequent to' tbe judgment in endeavoring to enforce tbe same, tbe total amount being $810.36. After tbe decision reported in 100 Wis. 208, and tbe filing of tbe *remittitur*in tbe trial court, this action was commenced in' tbe circuit court for Manitowoc county to restrain tbe use of tbe land in question for railway purposes until tbe judgment in tbe condemnation action, and tbe subsequent costs, were paid, in wbicb tbe *Milwaukee- & Lake Winnebago Railway Company,*and tbe receivers of tbe *Wisconsin Central Railway Company,*were joined as defendants witb tbe terminal company. Tbe right of tbe plaintiffs to tbe relief claimed was challenged by a demurrer to tbe complaint. Tbe demurrer was overruled, and on appeal to tbis court tbe decision was affirmed September 26, 1899. Tbe ease is reported in 104 Wis. 47. September 30, 1899, there was deposited in the office of tbe clerk of the circuit court for Manitowoc county, for plaintiffs, $8,955.17, as and for tbe balance necessary, witb tbe $1,766 theretofore deposited as aforesaid, 'to satisfy tbe judgment in tbe condemnation action. February 8, 1900, tbe record in tbis case having been in tbe meantime filed in tbe office of tbe clerk of tbe circuit' court for Manitowoc county, supplemental answers were served, calling attention to tbe deposit of September 30th, and pleading tbe same, and tbe deposit therétdfore made, as a defense tó tbe suit. Tbe court, at tbe end' of tbe trial, allowed sucb answers to be filed, awarding plaintiffs, as terms thereof, their taxable costs up to tbe time of such allowance. Tbe issues raised by tbe pleadings were tried, and November 12, 1900, the court filed find*49ings of fact, giving tbe bistory of tbe litigation as heretofore stated, and deciding in addition thereto, among other things not necessary to mention, in substance as follows: The receiver appointed in the sequestration proceedings claimed that he was entitled to take the $1,766 paid to the clerk of the circuit eoui*t on the award of the commissioners and administer the same as part of the assets of the Manitowoc Terminal Company. He served on such clerk a notice to that effect. Plaintiffs did not také any part of the money paid into court in the condemnation proceedings, nor did they consent in any way to the use of their land by the railway company. Such money, in the aggregate, covered the entire amount awarded to plaintiffs, including interest on the judgment in the condemnation action, up to the time the deposit was made, September 30, 1899. It did not include any costs incurred in enforcing such judgment, nor any costs in this action. The Manitowoc Terminal Company is insolvent, and all its rights in the right of way in controversy were, before the commencement of this action, transferred to the defendant *Milwaukee & Lake Winnebago Railway Company.*The proceedings on the part of the terminal company, to acquire such right of way, and all its acts in that regard, were instigated by the *Milwaukee & Lake Wirmebago Railway Company.*The latter railway company knew that the terminal company was insolvent. All .the facts stated were fully known to the *Milwaukee & Lake Winnebago Railway Company*as they occurred, and it was in fact a party thereto. It now claims the right to maintain and operate the railway constructed by the terminal company across the lands claimed by plaintiffs, wholly upon the ground that the right to do so was acquired in the condemnation proceedings and the occurrences that have been mentioned. At the time of the commencement of this action the receivers of the *Wisconsin Central Railway Company*were in possession of the property in dispute under *50a lease from the *Milwaukee & Lake Winnebago Company.*There were further findings as to the right of plaintiffs to a farm crossing of a kind specified and at a place designated in the findings.

On the findings detailed and referred to the court decided that the title to the right of way in controversy vested in the successor of the terminal company upon the deposit being made September 30, 1899, and that the effect thereof was to defeat this action from the beginning so far as it was based on any claim of title to the right of way by plaintiffs; that under th’e circumstances they were entitled to recover costs taxed in this action only as terms of allowing the supplemental answers; that such costs were no legitimate part of the judgment to be rendered against the defendants or either of them; that plaintiffs were entitled to the judgment requiring successor of the terminal company to construct and maintain for them a farm crossing as indicated in the findings, but were not entitled to any other relief by the final decree; that they were entitled to withdraw from the possession of the clerk of the circuit court the money placed there for them as aforesaid.

Thereafter the costs were taxed by the clerk, and subsequently, on a review thereof by the court, it was finally decided plaintiffs should be.allowed $233.01 as terms of filing the supplemental answers. it was claimed on behalf of plaintiffs that they were entitled to full costs in this case, including the $810.36 taxed in the special proceedings, and to a judgment therefor in due form. Judgment was entered according to the decision of the court as aforesaid, no mention being made therein of costs to either party..

For the appellants there was a brief signed, Timlin, *Glides-man & Conway,*and *G. G.*Sedgwide, and oral argument by *JE. A. Conway.*

For the respondents there was a brief by *Thos. H. Gill,*and oral argument by *C. M. Morris.*

*51Maeshall, J.

This appeal turns, in the main, on the effect of the two deposits of money for the benefit of appellants in the office of the clerk of the circuit court where the report of the commissioners in the condemnation proceeding was recorded. It is conceded that the two deposits, when made, were sufficient to satisfy plaintiffs’ legal and equitable rights as they stood on the day the last deposit was made, September 30, 1899, except as to costs incurred in th'e enforcement of the judgment in the condemnation action and in this action, if the first deposit was then available to them. Counsel for appellants say it was not so available, because the receiver in the sequestration proceeding was entitled to take that fund and administer it as part of the assets of the Manitowoc Terminal Company. That contention is based on the theory that, notwithstanding the money was specially deposited for the benefit of plaintiffs, it still remained the property of the depositor. The statute under which the deposit was made does not seem to contemplate that, niter such an act and the corporation takes possession of the property sought to be acquired and appropriates the same to its use, it has any control over the fund. Sec. 1850, Stats. 1898, provides:

> /-‘At any time after the making of such award the railroad corporation may pay to the owners of the lands so taken or to the clerk of said court for the use of such owners the amounts awarded by the commissioners, and thereupon may enter upon, take and use the land for the purposes for which it was condemned, and may move said court or judge, upon twenty-four hours’ notice, that a writ of assistance may be issued to put such corporation into possession of the same; and said ■court.or judge shall, upon the corporation giving security in such additional amount as the court or judge shall require to pay any judgment that shall be recovered against it on appeal, award such writ. If such corporation be in possession or be put in possession of such land pending an appeal the owners or parties entitled thereto shall be entitled to receive the money paid into court on account of the award appealed from, without prejudice to the appeal taken.”

*52It will be observed that, by the very terms of the statute, money deposited pursuant thereto is under the absolute control of the landowner. True, there is a further provision in the statute, following that we have quoted, to the effect that if the corporation seeking to acquire the land appeals from the award of the commissioners, the landowner cannot withdraw the money paid into court by such corporation without giving a bond to protect it from loss in case of a final reduction of the award. But that does not change the situation. There is nothing in that to indicate that the corporation, after depositing the money and taking possession of and appropriating the land, can reclaim the fund or divert it in any way, especially while it insists upon its right to the land and continues in the enjoyment thereof.

We are not unmindful of the fact that in *Neilson v. C. & N. W. R. Co.*91 Wis. 557, it was held that the landowner who appeals from an award made in condemnation proceedings and does not in the meantime take the money deposited for him, and succeeds in increasing such award, is entitled to interest on the whole amount finally awarded to him from the date of the first award. That was based upon the right of the landowner to refuse to part with his property or take any compensation therefor till that full and just compensation secured to him by the constitution shall be provided. It does not militate against the plain meaning of the statute that money, when once deposited in court for the landowner, in the circumstances under discussion, is at his disposal for the purpose of the deposit at any time he may see fit to claim it, and without any prejudice to his right, in due form of law, to pursue the appropriator of his property to obtain further compensation. While the landowner is not bound to withdraw the money, it is obviously placed beyond the control of the corporation. That is the plain meaning of the statute. It follows that the full amount of the first deposit made for appellants must be counted in determining whether the full *53amount to which, they weye entitled was at their disposal September 30, 1899.

Appellants’ counsel further contend that the circumstances of the deposit do not .satisfy common-law rules as regards tender of payment, to extinguish a cause of action or satisfy a judgment. It is a sufficient answer to that to say that the manner in which tender of payment is required to be made to a landowner, in proceedings to deprive him of his property by the power of eminent domain, is regulated by statute, and, so far as it is reasonably calculated to secure to such landowner the just compensation which the constitution guarantees him, it is exclusive.

It is suggested that, as this action was founded on the judgment rendered and recorded in the circuit court for Brown county, it is not affected by a payment to the clerk of the circuit court for Manitowoc county. True, but payment as made, even if it be held to have been sufficient to cover the judgment and subsequent costs, necessary to its extinguishment, and the satisfaction of all .claims of appellants requisite to divest them of their property, did not *ipso facto*discharge the judgment. But that does not affect this case. If the statute authorized the payment to the clerk of the circuit court where the condemnation proceedings were commenced ' and the report ef the commissioners was filed, and required payment to be so paid as a condition precedent to the acquirement of the property by the railway company, except in case of consent of the owners to receive the money and execute a receipt in the form prescribed by the statute to be deposited in lieu of the money, then there was no other course to pursue than the one adopted. By reference to those parts of secs. 1850 and 1851 covering the subject, it will be seen that the first section provides that the report of the commissioners shall be filed in the office of the clerk of the court where the proceedings were commenced, and that it shall be recorded in the judgment book of said court. The next section provides *54that, when payment of the award shall be made into said court, or a receipt shall be filed showing payment to the person entitled to the money, the clerk of said court shall minute the fact at the foot of the report of the commissioners in the judgment book of said court, and that such latter circumstance shall be the final act necessary to devest the landowner of his property and appropriate it to public use. Obviously, there is but one place in which the corporation can in such circumstances deposit the compensation required to be given to the owner of the property sought to be acquired, and that is in the office of the clerk of the circuit court where the award of the commissioners is recorded, regardless of where the action on appeal from the decision of the commissioners may be tried, and the judgment embodied in the final result be recorded. If the report of the commissioners is recorded in one county, and the final award is made by judgment rendered on appeal in another county, as in this case, the deposit of the full amount to which the landowner is entitled in the former county will not of itself discharge such judgment of record; but it will operate as full payment thereof, and proof of the deposit may doubtless be made before the court in the latter county and an order be obtained discharging the judgment. The formal discharge of the judgment in such a case is not a condition precedent to the acquirement of the property sought by the corporation. Payment to the landowner, and the filing of his receipt showing such fact in the office of the clerk of the circuit court where the report of the commissioners shall have been recorded, or the deposit of money in that place, sufficient to cover the award, and the notation required at the foot of such record, complete the forms of law necessary to .convert the private property involved into public property.

It must be conceded that if, as a condition of the right to take appellants’ property, they were entitled to reimbursement for their necessary expenditures in their efforts to real*55ize upon tbeir judgment in tbe condemnation action, tbe • money deposited in court did not extinguish tbe cause of action in tbis suit, and tbe jrrdgment rendered on a contrary theory is erroneous. Tbe learned trial court held that payment into court of tbe face of such judgment, and interest up to tbe date of payment, and a proper notation thereof on tbe record of tbe report of the commissioners as provided in sec. 1851, Stats. 1898, divested appellants of all interest, in tbe real estate sought to be acquired, adverse to tbe railway company, and that, upon tbe defense of such payment being permitted in tbis suit by tbe supplemental answers, appellants were deprived of tbeir cause of action as from tbe beginning, so that the suit could not thereafter proceed to judgment-in tbeir favor even for costs up to tbe time of the bringing in of tbe new defense, on tbe theory that they bad any interest in tbe land in controversy at tbe time of the commencement of tbis litigation. That applied tbe doctrine, that when a cause of action has been extinguished during tbe pendency of an action to enforce it, it cannot further proceed to recover costs, to different circumstances than it has ordinarily, we venture to say that it has ever, been applied to in any well-considered reported case. But tbe conclusion we have reached renders a decision of tbe question of whether tbe court rightly applied it. unnecessary. It will be found, however, that in tbe cases where tbis and other courts have held that an action cannot be continued merely for tbe recovery of costs after tbe cause of action sued on has been satisfied, there was a settlement of some kind between tbe parties after tbe commencement of tbe suit, nothing being said about costs, not a mere tender of satisfaction not including tbe costs up to tbe time of tbe tender, or a tender not accepted. *Geiser T. M.*Co. *v.*Smith, 36 Wis. 295; *Mason v.*Beach, 55 Wis. 607; *Two Rivers Mfg. Co. v. Beyer,*74 Wis. 210; *Collins v. Lowry,*78 Wis. 329; *Bank of Commerce v. Elliott,*109 Wis. 648; *Dunton v.*Reed, 17 Me. 178; *Osgood v.*Green, 33 N. H. 318; *56*Buell v. Flower,*39 Conn. 462; *Ayer v. Ashmead,*31 Conn. 447; *Canfield v. Eleventh Sch. Dist.*19 Conn. 529; *Torry v. Hadley,*14 How. Pr. 357.

Tbe trial court gave effect to that part of sec. 1851, Stats. 1898, material to the proposition suggested at tbe opening of this opinion, according to tbe letter thereof, bolding that costs incurred in endeavoring to collect a judgment rendered in a condemnation proceeding are not a part of tbe judgment, and that payment of tbe face of tbe judgment and interest from its date, in tbe manner indicated in tbe section, and a notation thereof as therein indicated, regardless of tbe property owner’s expenditures in fruitless attempts to collect tbe judgment, operates to take bis property against bis will and vest it absolutely in tbe corporation seeking to obtain it for railway purposes. Tbe particular language of tbe section is as follows:

> “When no appeal shall be taken from any award within the time provided by law and tbe corporation shall have paid tbe amount thereof into tbe court or filed a receipt therefor, duly signed by tbe owner and acknowledged before an officer authorized to take tbe acknowledgment of deeds, in tbe office of tbe clerk of tbe court, or when, after tbe determination of such an appeal, tbe railroad corporation shall have paid into court tbe amount of tbe judgment rendered thereon or filed a receipt therefor as aforesaid, tbe clerk of said Qourt shall make a minuté of such payment or of tbe filing of such receipt at tbe foot of tbe record of tbe report of such commissioners in tbe judgment book of said court; and thereupon tbe exclusive use of said premises and every part and parcel thereof shall vest in such corporation, its successors and assigns so long as used for railroad purposes.”

What do tbe words, “paid into court tbe amount of tbe judgment rendered thereon,” mean ? Such meaning must be held to be broad enough to secure to tbe landowner, under all circumstances, a just compensation for bis property before being deprived thereof, or tbe legislation must be condemned as partly or wholly unconstitutional. Tbe constitution guar*57antees that private property shall not be taken for public use without just compensation being first made therefor. Sec. 13, art. I. If the trial court decided rightly, then'the entire compensation awarded to a person .by the forms of law in the proceedings to take his property by the right of eminent domain, may be necessarily dissipated by him in fruitless endeavors to collect it, and yet, by the payment into court of the mere face of the award and interest thereon from its date, such property may be appropriated against his will for public purposes, not by an exchange of equivalents, but, in effect, by confiscation. Neither argument'nor the citation of authority, it seems, is needed to demonstrate that a construction of the statute rendering the result indicated possible would call for its judicial condemnation as not satisfying the constitutional guaranty to which we have referred. If we must say the meaning the trial court ascribed to the statute accords with the plain letter thereof, then it follows that the statute is absurdly unreasonable and is unconstitutional, and we must look for some other meaning that will avoid such result and test this appeal thereby. If no such meaning can be discovered, we must determine the rights of the appellants independently of the statute, testing them by the constitutional guaranty.

The subject of whether the necessary costs incurred by a person in efforts to obtain a just compensation-for property sought to be taken from him for public purposes by the power of eminent domain, form a part of such compensation and must be paid or tendered before he can be deprived of his property, has received attention in many courts and by eminent text writers. In 2 Lewis, Eminent Domain (2d ed.), § 559, the opinion is expressed and well supported by authority, that any law which easts the burden upon the landowner of paying the costs necessarily incurred by him in having the compensation ascertained, to which he is entitled for property sought to be taken from him by the power *58of eminent domain, is unconstitutional. Since actual payment of tbe compensation is as essential under tbe constitution as its ascertainment, obviously, expenses necessarily incurred in enforcing sucb payment are as necessary to that full and just compensation secured to tbe property owner by tbe constitution as are costs incurred in having tbe amount of tbe compensation ascertained. In *San Francisco v. Collins,*98 Cal. 259, it was beld that tbe authority of tbe courts to allow or withhold costs as a part of tbe compensation to be awarded to a landowner, as a condition of bis being deprived of bis property by tbe power of eminent domain, must be tested by tbe constitutional guaranty that no sucb deprivation shall occur except upon condition that just compensation be made to tbe owner for tbe property taken; and that tbe amount of tbe damages to which tbe property owner is entitled cannot rightly be diminished by expenses incurred in obtaining tbe same so that be will not in tbe end receive that full compensation for bis property which tbe appropriator thereof in justice ought to pay. In *Epling v.*Dickson, 170 Ill. 329, where tbe same subject was considered, this language was used: “Where private property is taken or damaged for public use, just compensation cannot be made to tbe property owner if be is compelled to proceed in tbe courts for bis just rights at bis own costs.” In *Dolores No. 2 L. & C. Co. v. Hartman,*17 Colo. 138, it was beld that tbe costs necessarily incurred by a person in enforcing bis constitutional right to a just compensation for property sought to be taken from him by tbe right of eminent domain, are a part of tbe just compensation for sucb property, to which be is entitled under tbe constitutional guaranty in that regard. It was suggested that any other rule would result in a possible taking of property without rendering tbe owner thereof any compensation whatever, because of bis being compelled to expend an equivalent of tbe amount finally awarded to him in trying to obtain it.

*59Tbe cases cited voice tbe true spirit of tbe constitutional guaranty. It cannot bave been tbe purpose of tbe framers of tbe constitution that a person compelled to surrender bis property for public uses shall bave any less as compensation therefor than a full equivalent, measured by all reasonable rules. Tbat must include all necessary expenses incurred by bim in tbe enforcement of bis rights, which are taxable according to law. He must bave in tbe end a full, just compensation for bis property. It must not be diminished by any costs reasonably incurred in condemnation proceedings, or in collecting the award, which are ordinarily taxable by tbe rules of law in favor of the prevailing party in an action or proceeding to make bis judicial remedy effective. Tbat is tbe true constitutional measure of bis rights. If it cannot be found expressed within tbe scope of sec. 1851, Stats. 1898, then we bave before us another instance evidencing tbe vast importance of constitutional limitations for the protection of personal and property rights. We shall not spend time to demonstrate tbat rules for judicial construction will enable us to so bend tbe words of sec. 1851, “paid into court tbe amount of tbe judgment,” out of their ordinary meaning as to include all costs allowed by law, necessarily incurring in tbe enforcement of tbe judgment. Suffice it to say tbat they must be so bent to satisfy tbe demands of tbe constitution.

It follows tbat tbe just compensation which appellants were entitled to receive as a condition of their property being appropriated for railway purposes September 30, 1899, in addition to tbe amount then and previously deposited for their benefit in tbe office of tbe clerk of tbe circuit court for Mani-towoc county, was tbe costs incurred by them in tbe special proceeding to enforce tbe judgment rendered in the condemnation action, and such costs as were properly taxable in their favor in this action up to tbat time. If tbe respondents desired to then stop tbe litigation, they should bave applied to tbe court in this cause for an adjustment of such costs, to tbe *60end that they might pay them, and then paid them to appellants or deposited the same in court for their use together with the deposit that was made.

Since the full amount which appellants were entitled to receive was not paid to them or into court for their benefit, under the rules laid down in *Neilson v. C. & N. W. R. Co.*91 Wis. 557, they were justified in not taking the money which was deposited and in standing upon their legal rights and demanding interest on the judgment in the condemnation action till tender of the full amount to which they were entitled or payment thereof into court.

A point is made in the brief of counsel for respondents that the $810.36, taxed as costs in the sequestration proceeding instituted by appellants in the condemnation proceeding, included the costs and expenses of the receiver and were taxed at his instance. That accords with the findings filed in this action; but the court found that the $810.36 was allowed as and for the costs and expenses incurred by appellants in the condemnation action subsequent to judgment. All such costs and expenses were incurred at the instance of appellants and primarily for their benefit; they were the losers thereof unless collected of the adverse party. They are just as legitimately entitled to be reimbursed for them as for any others incurred in securing compensation for their property. They were not taxable as costs in this case, as contended for by appellants’ counsel, for they were not costs incurred in this case. But payment thereof should have been enforced by the court as part of appellants’ compensation for their property; or, to put it more accurately, to the end that the compensation awarded to them by the judgment in the condemnation proceedings should not be diminished by the necessary expenses incurred in collecting it.

The result of the foregoing is that the judgment must be reversed, and the cause remanded with directions to enter judgment giving the appellants the relief previously adjudged *61as regards the farm crossing; also, in form, for a recovery of the costs taxed and allowed to them against respondents in this, action; further, adjudging that appellants are entitled to he paid, as a condition precedent to being deprived of their property, sought to he acquired for railway purposes, in addition to the money heretofore paid into court for them, interest on the judgment rendered in the condemnation action from September 30, 1899, to the date the money deposited in court was withdrawn by them, specifying the amount of such interest down to the date of the corrected judgment; also the $810.36 allowed for costs in the condemnation proceedings subsequent to judgment, and interest thereon from the date of the taxation of such costs, specifying the amount in the aggregate at the time of entering the corrected judgment; and the costs and disbursements of this action as taxed, and such further costs as may be allowed them in the proceedings to perfect the judgment; and that appellants are further entitled to an injunction restraining the use of the land sought to be acquired, as prayed for in the complaint, unless said several sums are paid, and interest thereon from the date of the corrected judgment.

*By tho. Court.*— So ordered.