The opinion
Mr. Justice Sci-iaefer, dissenting:
The problem in this case is illustrated by the following hypothetical situation: In a quick-take proceeding the trial court makes a preliminary finding that just compensation for the property to be taken is $200,000. The condemnor is entitled to an order authorizing it to take the property upon depositing that amount, plus $50,000. (Ill. Rev. Stat. 1967, ch. 47, par. 2.3.) The property owner is entitled to withdraw at once the sum of $200,000, but he can not touch the additional sum of $50,000. (Ch. 47, par. 2.4.) Assume that he withdraws the $200,000, and two years later a jury determines that just compensation for his property was not $200,000, but $275,000. The question is whether the property owner is entitled to receive interest for the two years on the sum of $75,000, the amount by which the actual value of his land exceeded the $200,000 that he has already received, or whether he is entitled to recover interest for this two-year period only upon $25,000.
In my opinion the appellate court correctly held that in such a case he should receive interest on the total difference between the amount that he has received and the value of the property. The contrary result, which this court reaches, violates the constitutional rights of the land owner. Such a construction should be avoided.
The governing constitutional principles have often been stated. “The theory of the law is that when land is taken by eminent domain, or where it is injured in such a way as to create a constitutional right to damages, payment for the land thus affected should be coincident with the taking or injury, and, if for any reason payment is postponed, the right to interest from the time that payment ought to have been made until it is actually made follows as a matter of strict constitutional right.” Nichols on Eminent Domain, sec. 8.63.
The Supreme Court of the United States pointed out many years ago, “It is settled by the decisions of this court that just compensation is the value of the property taken at the time of the taking. L. Vogelstein & Co. v. United States, 262 U.S. 337, 340 , 67 L. ed. 1012, 1014, 43 Sup. Ct. Rep. 564; United States v. New River Collieries Co. 262 U.S. 341, 344 , 67 L. ed. 1014, 1017, 43 Sup. Ct. Rep. 565; Seaboard Air Line R. Co. v. United States, 261 U.S. 299, 306 , 67 L. ed. 664, 669, 43 Sup. Ct. Rep. 354; Monongahela Nav. Co. v. United States, 148 U.S. 312, 341 , 37 L. ed. 463, 473, 13 Sup. Ct. Rep. 622. And, if the taking precedes the payment of compensation, the owner is entitled to such addition to the value at the time of the taking as will produce the full equivalent of such value paid contemporaneously. Interest at a proper rate is a good measure of the amount to be added. Seaboard Air Line R. Co. v. United States, 261 U.S. 299, 306 , 67 L. ed. 664, 669, 43 Sup. Ct. Rep. 354; United States v. Benedict 261 U.S. 294, 298 , 67 L. ed. 662, 664, 43 Sup. Ct. Rep. 357; United States v. Brown, decided November 12, 1923, 263 U.S. 78 , ante, 171, 44 Sup. Ct. Rep. 92.” Brooks-Scanlon Corp. v. United States, 265 U.S. 106, 123 , 68 L. Ed. 934, 941 ; see also 41 Ill. L. Rev. 82, 104.