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.