The general principle is that the neces sary parties to a proceeding, independent of statutory requirements, are all persons hav ing an interest in the property taken, as,pro prietors, or such as is recognized by the law of the state as property ; Lewis, Tim. Dom. § 317. When the ownership is divided, each is entitled to his share, as life-tenant and re mainderman ; Miller v. City of Asheville, 112 N. C. 759, 16 S. E. 762 ; Kansas City, S. & M. R. Co. v. Weaver, 86 Mo. 473 ; dowress after admeasurement ; Borough of York v. Welsh, 117 Pa. 174, 11 Atl. 390 ; but not be fore the dower is assigned; Todemier v. As pinwall, 43 Ill. 401; and only as against the award when it is inchoate ; Wheeler v. Kirt land, 27 N. J. Eq. 534. The interest of a tenant must be compensated; Frost v. Earn est, 4 Whart. (Pa.) 86; if the lease has ac tual value to him; Corrigan v. City of Chi cago, 144 Ill. 537, 33 N. E. 746, 21 L. R. A. 212 ; sometimes separately ; Atchison, T. & S. F. R. Co. v. Schneider, 127 Ill. 144, 20 N. E. 41, 2 L. R. A. 422; and sometimes by ap portionment of the entire amount; Edmands v. Boston, 108 Mass. 535.
When part of land under lease is taken, the lease is not terminated or the tenant dis charged ; Stubbings v. Village of Evanston, 136 Ill. 37, 26 N. E. 577, 11 L. R. A. 839, 29 Am. St. Rep. 300; but both he and the lessor are entitled to compensation for their re spective losses; Patterson v. City of Boston, 20 Pick. (MaSs.) 159; Foote v. City of Cin cinnati, 11 Ohio 408, 38 Am. Dec. 737; Work man v. Mifflin, 30 Pa. 362 ; 1 Thayer, Cas. Const. L. 968. See Rand. Em. Dom. § 304; Corrigan v. City of Chicago, 144 Ill. 537, 33 N. E. 746, 21 L. R. A. 212, with note on rights of tenants, etc., in such cases; 5 Am. R. R. & Corp. Cas. 208, note, as to grantor and grantee, and 29 Am. St. Rep. 304, note, as to leased premises. See also 29 Am. L. Rev. 351, as to the abatement of rent when leased premises are appropriated.
As to mortgagees the decisions lack both uniformity and consistency, and this result is largely due to the differing views taken of the position of a mortgagee before the law. As between the parties to the mortgage the award takes the place of the land and the lien attaches to it ; Astor v. Miller, 2 Paige Ch. (N. Y.) 68; Gimbel v. Stolte, 59 Ind..453; Chicago, M. & St. P. R. Co. v. Bak er, 102 Mo. 560; 15 S. W. 64; Union Mut. Life Ins. Co. v. Slee, 123 Ill. 95, 13 N. E. 222; as to all rights and interests; Utter v. Rich mond, 112 N. Y. 610, 20 N. E. 554. The dam ages should be apportioned by the jury be tween owner, lessee, mortgagee, etc.; Rentz v. Detroit, 48 Mich. 547, 12 N. W. 694, 911. In some cases the remainder of the land be exhausted before the mortgagee can resort to the fund ; Bank of Auburn v. Rob
erts, 44 N. Y. 192 ; or to the condemned land ; Dodge v. R. Co., 20 Neb. 281, 29 N. W. 936 ; and the mortgagee, if not ft party to the proceedings, may appropriate the fund; Sawyer v. Landers, 56 Ia. 422, 9 N. W. 341; Bright v. Platt, 32 N. J. Eq. 370; but when the land has been sold and bought in by the mortgagee he loses all claim to the fund and new proceedings must be taken to condemn his interest ; Lehigh Coal & Nay. Co. v. R. Co., 35 N. J. Eq. 379. As affecting the title of the appropriator who has been said to take no better title than an innocent pur chaser for value ; Severin v. Cole, 38 Ia. 463; and must protect himself against the claim of the mortgagee ; Wooster v. R. Co., 57 Wis. 311, 15 N. W. 401; the more reasonable opin ion would seem to be that the mortgagee is a necessary party ; if in he certainly is; In re Parker, 36 N. H. 84; Ballard v. Bal lard Vale Co., 5 Gray (Mass.) 468; or after condition broken ; Adams v. R. R. Co., 57 Vt 248 ; in other cases to be bound he must have notice ; Siman v. Rhoades, 24 Minn. 25 ; Platt v. Bright, 29 N. J. Eq. 128 ; Warwick institution for Savings v. City of Providence, 12 R. 1. 144 ; Wade v. Hennessy, 55 Vt. 207; Sherwood v. City of Lafayette, 109 Ind. 411, 10 N. E. 89, 58 Am. Rep. 414; Wilson v. Ry. Co., 67 Me. 358; L. R. 1 Eq. 145; contra, Parish v. Gilmanton, H. 293; Keystone Bridge Co. v. Summers, 13 W. Va. 476 ; Whit ing v. City of New Haven, 45 Conn. 303 ; Farnsworth v. City of Boston, 126 Mass. 1; Read v. City of Cambridge, id. 427; Schu macker v. Toberman, 56 Cal. 508; Bank of Auburn v. Roberts, 44 N. Y. 192. See Lewis, Em. Dom. § 324; 18 L. R. A. 113,, note. It was held that the appropriator must see to the discharge of the mortgage and may pay it off or keep the money until it is due; In re John & Cherry Sts., 19 Wend. (N. Y.) 659; and he may require or provide for its satisfaction ; Devlin v. City of New York, 131 N. Y. 127, 30 N. E. 45. It has even been held that a mortgagee cannot move for con sequential damages to mortgaged property when the mortgagor has without fraud set tled with the company ; Knoll v. Ry. Co., 121 Pa. 467, 15 Atl. 571, 1 L. R. A. 366.
Judgment liens may be divested by the proceedings, and the creditor need not be made a party ; Watson v. R. 47 N. Y. 157, 162. This is the leading case and well states the reasons on which this settled prin ciple is based. See also' Gimbel v. Stolte, 59 Ind. 446; Bean v. Kulp, 7 Phila. (Pa.) 650; Lewis, Em. Dom. § 325 ; Rand. Em. Dom. §§ 302, 340. As to what interests may be con demned, see, further, supra.