Wiswell

The action was to condemn a right of way over the land of defendant. Upon the verdict of the jury fixing the amount of the damages to defendant’s property, the court, on October 9, 1907, adjudged that plaintiff pay defendant, within thirty days from the date of the judgment, the sum fixed by the jury, to wit, $4,030.50, or deposit the same in court for the use of defendant, “and upon said payment or deposit of said money as aforesaid within said time, a final order or decree of condemnation . . . shall be entered in this proceeding.” On November 7, 1907, plaintiff gave notice that it would move the court to dismiss the action, upon the ground that plaintiff had never taken possession of the land sought to be condemned, and “will never enter upon said land and has abandoned the location of the route set forth in said complaint, and the right to condemn the same.” In an affidavit heard with the motion, plaintiff, by its attorney, set forth facts in support of the motion, stating, in addition to the grounds above set forth, that the sum awarded was excessive, that no payment or deposit had been made, and that plaintiff does not intend to do so within thirty days from the date of the…