¶1dissenting.
¶2I have been unable to agree with the opinion adopted by the court in this case insofar as it holds that the measure of damages in condemnation to a lessee of land on a share rental basis upon which no crops have been planted is the difference between the value of what his share of the crops would have been at maturity had he planted them and the cost of production of the entire crop. It appears to me that the damages should be measured as of the day of the taking whether or not later developments might establish with a reasonable degree of certainty what would have been realized by the farming operation.
¶3The usual rule of damages to a leasehold interest taken in condemnation is set out in 29 C. J. S., Eminent Domain, § 143, p. 988, as follows: “If a leasehold interest is taken, or injured, the lessee is entitled to a sum which will restore the money loss consequent to the taking or injury. This consists generally of the fair market value of the leasehold or unexpired term of the lease, and is said to be the difference between the rental value of the remainder of the term and the rent reserved in the lease.”
¶4This rule seems to me to be logical. In the case of cash rent if the lessee has agreed to pay more than the reasonable rental he has not been damaged by the taking. If he has procured a bargain and is paying less than the place is worth he is entitled to damages. It is computed by subtracting the agreed rental for the remaining term from the reasonable market value of the rental for that period.
¶5If however the rentals are reasonable and proper for *365the property taken he has suffered no loss of substance and should receive very little.
¶6This rule was expressed quite clearly in State v. Platte Valley Public Power & Irr. Dist., 147 Neb. 289, 23 N. W. 2d 300, 166 A. L. R. 1196. In that case the lessee of a state school land lease was to pay as rent an amount equal to 6 percent of the appraised value of the premises. Provision was made for reappraisal at times during the term so that the 6 percent rentals would be varied in accordance with changing values. This court held that where the rent reserved equals or exceeds the rental value, the lessee has suffered no loss and cannot recover. The court held there could be no recovery for the unexpired term unless the lessee could prove the place should rent for more than 6 percent of the appraised value of the land.
¶7I think the same reasoning can be applied in case of rents reserved in kind. If a two-fifths share is the going and reasonable rent for corn lands a lessee who has agreed to pay three-fifths rental is not damaged by reason of the taking by condemnation. If however he has been fortunate to have procured a lease for one-third of the crops grown he has something coming. If the rents are the reasonable value for the term on condemnation the term and future rent payments have abated together.
¶8This general rule was followed last year by this court in the recent case of Ballantyne Co. v. City of Omaha, 173 Neb. 229, 113 N. W. 2d 486, which case in turn cited Platte Valley Public Power & Irr. Dist. v. Armstrong, 159 Neb. 609, 68 N. W. 2d 200, and other cases as previous authorities. An extensive note on the elements and measure of the lessee’s compensation is set forth in 3 A. L. R. 2d beginning at page 286. The note on measure of damages generally commences at page 290 thereof. The great majority of the cases cited there, including the Nebraska cases, state that where a leasehold interest is taken in condemnation the measure of damages *366is the market value of the unexpired, term over and above the rent stipulated to be paid. The note however is appended to Korf v. Fleming, 239 Iowa 501, 32 N. W. 2d 85, 3 A. L. R. 2d 270, where the lessee was allowed to prove the value of the crops to be raised, much as is permitted in the court’s opinion. It seems however to be at variance with most of the cases cited in the note and is to a considerable extent in conflict with an earlier Iowa case, Des Moines Wet Wash Laundry v. City of Des Moines, 197 Iowa 1082, 198 N. W. 486, 34 A. L. R. 1517.
¶9The opinion adopted in the case before us discusses many of the previous cases decided by this court as to the proper measure of damages in cases where growing crops are injured or destroyed. In my opinion they do not reach to the exact question before us because in the present case no crops had been planted. We are dealing wholly with the measure of damages to be applied to the taking of the remainder of the term. If crops that had been actually planted had been damaged or destroyed the proper measure of damage in that situation would be before us.
¶10The opinion discusses a great number of such cases and it shows quite plainly there is a conflict in some of them. I have read many of them and it appears to me that there are such conflicts, there is considerable amount of dicta in all of them, and that most of them do not cover the situation here presented. Many of them concern the measure of damages to be applied in cases involving eviction of a tenant by a landlord. Others involve trespassers or other tortfeasors. I am not satisfied the measure of damages in such cases should be applied in condemnation cases. The State is no wrongdoer. It simply takes over the property under its sovereign power of eminent domain and should pay for the damages for that which is taken at the time of the taking and not for future profits that might have been realized thereafter.
¶11*367The landlord is paid for the market value of the property taken at that time and in case part only is taken,for the damage to the remainder not taken. The owner in such cases may show the crops produced in the past to prove the value of the premises when taken. He is not of course allowed to recover profits that might accrue in the future.
¶12The opinion cites the case of Gledhill v. State, 123 Neb. 726, 243 N. W. 909. It was a suit to recover for land damaged by the State. The land however was not taken in condemnation. It was damaged by flooding by the State without any formal condemnation and the owner sought relief by action brought by him. Thus the damage had occurred and the flooded land laid fallow prior to any taking by the State. I doubt if it is the same situation as where future profits are in question after actual taking in condemnation.
¶13Also the closing pages of the opinion in the cited case indicate the damages allowed stemmed in part at least from the statute affecting suits brought pursuant to a legislative resolution. The court, though holding the resolution did not create a liability which did not exist before its passage, does state the ordinary rules of law did not apply at least in the usual strict sense. In this respect the court, in the cited case at the conclusion of the discussion on damages, stated: “The senate authorized the suit to be instituted under authority of section 27-319, Comp. St. 1929. In such a case, section 27-322, Comp. St. 1929, provides: ‘The court in which such action may be brought shall hear and determine the matter upon the testimony according to justice and right, as upon the amicable settlement of a controversy, and shall render award and judgment against the claimant, or the state, as upon the testimony right and justice may require.’ In Lancaster County v. State, 97 Neb. 95, the court referring to these sections of the statutes said: ‘Under this direction it is the duty of the court to brush aside technical defenses and to act in like man*368ner as if the parties were seeking to amicably settle their controversy.’ In Commonwealth Power Co. v. State, 104 Neb. 439, this court said: ‘The purpose of these sections is to take such cases out of the ordinary rules of law and to place their determination upon a much higher and broader ground, … and to make justice and right, as viewed by the court, the basis of its decision.’ ”
¶14It is generally held that a loss of profits by reason of taking or a damaging of a leasehold interest for a public purpose are not recoverable as an element of damage. See, note hitherto referred to in 3 A. L. R 2d under section 20, page 321, where a considerable number of cases are gathered.
¶15In the present case, I am unable to agree to a rule of law where the measure of damage to a leasehold estate includes loss of future profits as the opinion clearly holds.
¶16The result is to allow damages for profits not earned including those arising from labor not performed, seed not sown, crops not harvested, and machinery not used.
¶17Such a rule in my opinion should not be adopted and will result in trouble and confusion to the court in future opinions.
¶18I think the rule as stated in Ballantyne Co. v. City of Omaha, supra, is right and should be adhered to. If the rule in the opinion in the case before us is adopted the owner of condemned land will get the full value of the land. Both the lessee and lessor will receive their proper consequential damages and the tenant would receive his future profits also. These future profits the State in my opinion should not be required to pay either to the lessor or the lessee.
¶19It is to be noted that in Ballantyne Co. v. City of Omaha, supra, the court stated the constitutional provision requiring the payment of damages in condemnation did not change the rule with respect to the measure of damages.
¶20*369Under the facts in the case before us as set out in the court’s opinion, the amount of the consequential damages were in dispute in the testimony. The case was heard before the trial court whose findings stand in the same position as the verdict of the jury. Except for that part of the claimed damage that arises by reason of the profits on corn which was to be grown, the findings of the trial court could be sustained under the evidence. In view of the evidence outlined in the court’s opinion, I think the trial judge’s findings would have to be accepted and the judgment should be affirmed.
¶21Judges Boslaugh and Carter authorize me to state that they concur in this dissent.