12-1155. Application by plaintiff to take
possession; notice of hearing; money deposit; bond in lieu of
deposit; judgment for deficiency
A. The plaintiff may at any time after determination of the issues as provided in
section 12-1146, if the court at such time found that the use for which the property is
sought to be condemned is a necessary use, make application to the court for an order
permitting plaintiff to take possession of and use the property sought to be condemned
for the purposes prayed for.
B. Upon filing the application a time for the hearing thereof shall be fixed and
notice thereof served upon the parties in interest by personal service within the state,
or by publication if they reside without the state, in such manner as the court may
direct.
C. On the day of the hearing, the court shall receive evidence as to the probable
damages to each owner, possessor or person having an interest in each parcel of real
property sought to be condemned, and may direct that upon a deposit of money equal to the
amount of such probable damage so found to each person in interest, plaintiff shall be
let into the possession and full use of the parcels of real property as described in the
order for the purposes therein specified.
D. Monies so paid shall be deposited with the clerk of the court, and held by him
to the use and benefit of each person having an interest in each parcel of real property
sought to be condemned, subject to final judgment upon trial of the action, and held also
as a fund to pay any further damages and costs recovered in the action as well as all
damages sustained by defendant if for any cause the property is not finally taken for
public use. The clerk of the court shall be liable to plaintiff for the deposit.
E. The parties may stipulate as to the amount of deposit, or for a bond from
plaintiff in lieu of the deposit. The stipulation or evidence of the deposit shall not
be introduced in evidence or used to the prejudice of any party in interest on the trial
of the action.
F. The ultimate amount of compensation shall be fixed in the manner specified in
this article. If the amount fixed exceeds the amount deposited by plaintiff, the court
shall enter judgment against plaintiff in the amount of the deficiency, together with
interest at the rate of six per cent per annum on the deficiency, from the date of the
order of the court permitting plaintiff to take possession as provided by this section,
but subject to abatement for use, income, rents or profits derived from the property by
the owner thereof subsequent to the date of the order. The court shall order plaintiff
to deposit the amount of the deficiency in court for the use and benefit of the person
entitled thereto.
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