This is a suit to condemn right of way for a railroad. It was commenced originally against Bacon alone as trustee, and summons issued December 24, 1889. After-wards, August 25, 1890, the Mitchells were made parties by stipulation, and they appeared without summons. Trial was had February 25, 1891, and judgment in favor defendants Mitchell for $1,975 and costs and the value of the fence, $325. The evidence showed Mitchells owned the land, and Bacon had no interest in it only as trustee in a trust-deed to secure the payment of a loan of $5,600. This was evidenced by a trust deed in the usual form. There is no complaint that damages assessed are too high; but the plaintiff and appellant complains of the instruction of the court to the effect that the value of the land and estimation of damages should be made as of the date of August 25, 1890, and contends that the value of the land and estimation of damages should have been made as of the date of the summons, December 24, 1889. We- think the instruction was right. The Mitchells were the only persons entitled to damages. Bacon had no interest in the damages whatever, and was properly a party for the purpose of seeing that the security for the loan he represented was not impaired. If damages had been allowed him, the Mitchells would have been entitled to receive the full amount thereof credited on their indebtedness. For practical purposes, under the eminent domain statutes of this Territory, they were the owners; and the condemnation of the land by a proceeding in which they were not parties would have been of no avail, and would have given the plaintiff company no right to enter upon the land and use it for the construction of their railway. Hence they were necessary parties to the proceedings of condemnation. 2 *509Comp. Laws IJtab, § 3852, provides that the damages ” shall be deemed to have accrued at the date of the summons.” ■

Summons was issued against Bacon alone on December 24, 1889, on a complaint against him alone, and after-wards the complaint was amended so as to make the Mitchells parties, and on August 25, 1890, they appeared and answered by stipulation without summons. If they had not appeared, it would have been necessary to have issued summons to them to make them parties, and their damages under the statutes would have accrued as of the date of the summons against them. It was for the benefit of the plaintiff that they appeared without summons, and, because they did that, is it reasonable that . they waived their right to have their damages assessed according to law? These views need no authority in their support; they are rudimentary. The judgment is affirmed.