The opinion
RILEY, C. J.
(dissenting). The rule of “Expressio unius est exclusio alterius” has no proper application to the restrictive proviso contained in section 24, art. 2, Const, of Oklahoma, which prevents the passing of a fee from the landowner in condemnation by common carrier-for right of-way purposes.
If the specifications of the constitutions 1 restriction give rise to a self-enacting provision for the passing of the title to condemnor in all other cases of condemnation, there would be no occasion for examination of mere statutes, nor would it be proper to hold that “the Legislature may determine the title that may be acquired in other classes
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or cases” and “define the title which municipalities may acquire * * * through the power of eminent domain.” For it is elementary that the Constitution may not be amended by mere legislative act. Simpson v. Hill, 128 Okla. 269 , 263 P. 635 .
This maxim of construction, the same as “Expressum fa-cit cessare taciturn,” ordinarily is applied to the construction of wills and deeds. It deals with grants and affirmative declarations, and obviates in construction resort to implications. For example, where a lease contains an express covenant by a tenant to repair, there can be no implied contract to repair arising from the relation of landlord and tenant. As applied to law, its application is to an affirmative mode stated in the law. A prohibition stated in the Constitution would not be a grant of authority in all other or different cases for a contrary method, but “if' authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the act authorized under other circumstances than those so defined.” Lord Campbell admonishes great caution in dealing with the maxim. Saunders v. Evans, 8 H. L. Cas. 729.
Section 4411, C. O. S. 1921, is a statute that, ought to be considered in pari materia for the determination of the extent of the taking in the instant case. That statute confers on cities and towns'-the -powers of eminent domain for the waterworks purpose. Ii grants the' privilege' to “condemn and appropriate * * * for the -use- of- the city or town any such land.” The procedure prescribed is the same as that designated for railway purposes. The extent of the taking is limited to “the perpetual right to use the land so condemned.”
A bare majority of the court has rejected the solemn provisions of this statute as a result of an involved effort attempting tcshow antiquity of the enactment in comparison with another statute (section 4507, C. O. S. 1921), existing for .manifold purposes, and finally adopted at the same time as a part of the revision of the laws of 1910.
“Whether or not the laws contained in the Harris-Day Code were ever previously enacted by the Legislature of this state, or were written in said Code by the codifiers without having previously been enacted into law by the Legislature of this state, the adoption of said Code by the Legislature gave life and force to every section of said Code.” Readdy v. Mallory, 57 Okla. 499 , 157 P. 742 ; Quick v. City of Fairview, 144 Okla. 231 , 291 P. 95 .
New and simultaneous life was breathed into this statute, by the adoption of the Code, and reference may be had to antecedent legislation only to solve a doubt, not to create one. 59 C. J. 1099; Merchants Natl. Bk., etc., v. U. S., 42 Ct. Cl. 6 , 29 S. Ct. 593 , 214 U. S. 33 , 53 L. Ed. 899 .
“All the different parts of the revision or Code, particularly those parts which relate to the same subject, must be construed together with a view to harmonize them, if possible, and giving effect to each.” 59 C. J. 1100.
Since the right of the codifiers to amend, subject to legislative adoption, was granted by the Legislature and by the courts sustained, is it not logical to conclude that a simultaneous adoption in the Code of two or more sections on the same subject was with the view that the one would supplement and explain the other? How, then, can the majority reasonably resolve a conflict in the meaning of section 4411, supra, and section 4507, as to the extent of the title to be taken under the powers of eminent domain, and as a result of the conflict so resolved, but which does not actually exist, totally annihilate the provisions of the former statute?
In fact, there is no conflict; the latter statute (4507) is a broad one enacted for the purpose of enabling cities to engage in any business which may be engaged in by any person under ¿ franchise from such a city, and cities of a population of more than 2,000 inhabitants, by the act, were empowered to acquire, own, and maintain real estate for sites for such public utilities to be engaged in by it. By the segregation and use of the word “own,” contained’ in this special statute, the majority holds' that an absolute ownership amounting to a fee-simple title may be acquired in land as a result of condemnation proceedings where a city acquires the use of land for waterworks purposes.
The premise of the majority is in error. The definition relied upon and stated in 22 R. O. L. 75, is contrary to excerpts taken therefrom and used to support the false premise.
The excerpts so 'derived from the selected definition refute the majority conclusion. The written definition of the word “own” embraces a tenant for years, for life, and a remainder in fee. It comprehends the legal and the equitable estate and the general and the special owner. The whole words of the definition show variety of meaning ranging from the absolute to the mere possession with dominion.
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It is said by the majority, as to the word “own,” that “when used alone it imports an absolute owner or one who has complete dominion of- the property.” This is an alternative — the latter phrase exactly fits the former statute where the condemnor receives “the perpetual right to use” the property, it is significant that the word “own” is not used alone, but with two other words: “acquire” and “maintain.” It is important that the word is used in connection with other statutes on the same subject, one erroneously said to be a former statute, wherein the title taken by the condemnor is analogous, by the use of the phrase “the perpetual right to use,” to an easement, and a subsequent statute which denotes the last intention and expression of the Legislature, whereby the city was merely empowered to “condemn and hold” land for the waterworks purpose (amongst others).
Words
&
Phrases, vol. 5 (3rd Ser.), quoting from Makemson v. Dillon, 24 N. M. 302, 171 P. 673 , states that the word “owned” applies to any lands in which there is any “right or interest.” Such a definition clearly includes an easement. Contained in the same volume of Words and Phrases, quoted from by the majority and stated as th,e primary definition of the word “owner,” is the following:
“An ‘owner’ is not necessarily one owning the fee simple or one having in the property the highest estate it will admit of. One having a lesser estate may be an owner, and, indeed, there may be different estates in the same property vested in different persons, and each be an owner thereof.”
The following statements relating to the word are cited in the authority selected. They precede the definition inaptly chosen by the majority.
■ “The word ‘owner’ * * * is descriptive of various rights to an interest in land.”
“The word ‘own’. * * * varies in its significance according to context and subject-matter.”
“The word ‘owner,’ as applied to. real estate, may designate the owner of the fee or the owner of a less estate, as a lessee for a term of years.”
“An ‘owner’ of a.thing is he who has dominion over it, including the idea of right of possession. The word ‘owner,’ as applied to land, has no fixed meaning. * * *”
“The word ‘owned’ means held or oc cupied. * * *”
“The word ‘owner’ is a generic term which embraces the different species of interest which may be carved out of a fee-simple estate.” • ‘'
In short, the majority rejected 62 previous definitions of the word “own” contained in the authority selected by it before finding one to suit its purpose. Moreover, the definition -selected by the majority was one dealing with the use óf the word as contained in an allegation of á petition, in which case, of course, the word is given the maximum of meaning. Phillips v. Hardenburg. 181 Mo. 476 .
It is said by the majority that the gram of power contained, in the last expression of the Legislature, section 4569, C. O. S. 1921. to “condemn and hold for the city within or outside of the city limits, all necessary land for * * * waterworks, * * makes no mention of the “character of title” and “uo expression is included which in any way purports or pretends to limit the nature of the estate which may be acquired through the exercise of the powers of eminent domain”: that “there is no conflict between section 4507, supra, and section 4569,, supra,, as to the interest the city may acquire by condemnation proceedings,” but that “conflict exists between sections 4411 and 4507, supra, and, therefore, it seems clear * * * that the last expression of the Legislature * * * contemplates that the various municipalities of the state should have the power through condemnation proceedings to acquire a fee: simple title.” These statements are ridieiu lous and unworthy of the thought of my esteemed associates.
Now, since the last enactment (section 4569) is not in conflict with section 4507, and since section 4569 does not designate the character of the estate taken by the condemnor, then neither does the former section 4507, relied upon by the majority, desr ignate the extent of the taking. Moreover, section 4507 simply specifies that the city shall “own” the land taken, whereas section 4569 grants permission to the city to Ohold” the lands condemned. There is no limitation of the nature of the estate which may be acquired by the power in either statute. There is not a suggestion as to limitation of the extent of the taking in either statute, nor is it necessarily a question of limitations. The question is one as. to authorization or grant by the Legislature for the taking of a fee-simple title. Unless the city has been authorized to take a fee, or unless the court has been empowered to determine, under alleged necessity, the extent of the taking (and there is no such authorization by our statute).
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then only an estate in the nature of an easement may be taken by the condemnor, and a judgment as in the original proceedings presented in the case at bar is beyond that which the court was empowered to render; it is void.
The last enactment of the Legislature simply empowers the city to -‘hold” land so condemned for the waterworks purpose. This authorization does not contemplate an alienation of the fee in the lands, nor á speculation by a divesting of title from the landowner and a vesting of it in a subsequent purchaser. It simply grants a power to “use” for the public benefit; “to hold” means to retain, to keep; when used in relation to land, it embraces the idea of actual possession. When used in the habendum clause of a deed, it includes the twofold idea of actual possession of the thing, and being invested with the legal title. Stansbury v. Hubner, 73 Md. 228 , 20 Atl. 904 ; 4 Words & Phrases (1st Ser.) 3317.
Indeed, there is more reason, in view of the historical significance of the word and use in deeds, to say that it denotes an absolute estate than it is to denote such meaning to the word “own.” Both such meanings in connection with the case at bar are equally absurd.
In this jurisdiction all statutory provisions as to the power of eminent domain, except as to public lands, lead back to the method devised for condemnation of right of way for railroad purposes.
Section 5505, O. O. S. 1921, being a part of article 14, ch. 34, relating to the power of eminent domain, provides:
“The provisions of this article with reference to eminent domain shall apply to all corporations having the right of eminent domain. * * *” (Municipal corporations are specifically mentioned.)
Some of the provisions of that article establish procedure, whereas others designate the character of the estate to be taken by condemnor.
Section 5504, Id., is of the latter class. It designates the extent of the taking. It provides :
“The fee of land over which a mere easement is taken without consent of the owner shall remain in such owner subject only to the use for which it was taken.”
The result is that a fee title did not and could not pass from the Beepers, the landowners, unto Oklahoma City, the condemnor.
Section 4507, supra, relied upon by the majority specifies no method of its own for exercise of the power and consequently the all-embracing provisions of the general law apply to the corporation known as Oklahoma City, whereby, when the lands were taken without consent of the owner, the fee remained in the owner “subject only to the use for which” the land “was taken.”
The decision in Skelly Oil Co. v. Kelly (Kan.) 5 P. (2d) 823 , is relied upon to support the opposite view. There is little, if anything, in that decision to support the majority. That decision is of recent origin (1931). It is not a construction placed upon a statute adopted by this state. It is a random decision without citation of previous Kansas or other authority. That decision is contrary to the majority view. Its reasoning is in accord with the view herein expressed. That decision considers two different Kansas statutes: a general and a special statute. There was no provision of the general statute under consideration providing for the vesting of title upon condemnation, and to that extent the general statute of Kansas is exactly like the statute of Oklahoma applied by the majority to the case at bar. The rule as to such a statute is as stated by the Kansas court in the cited case:
“In such cases, the owner is not deprived of all interest. He is merely deprived of interest to the extent necessary for the particular use, when the particular use is abandoned, or the burden is otherwise removed, the owner has the same dominion he had before the public use was superimposed.”
But in the Kansas case a special statute was found to be applicable. We have no such special statute, but, as will be hereinafter disclosed, the statutes applicable, and all statutes of this state, specify the contrary rule.
The special Kansas statute provided:
“The'title to land condemned by any city for park, parkway or boulevards shall vest in such city upon the publication of the resolution of the governing body condemning the same.”
Special procedural statutes are required for a vesting of the fee in condemnor, and resort must be had to them to ascertain just what the condemnor is to own or the extent of the taking, and whether title passes or mere possession. It is plain that by law it is provided in Oklahoma that title does not pass, but upon payment or deposit of condemnation money, mere possession passes to condemnor with right in the condemnor to impress the privately owned property with
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the public use. “The determination oí the character ol the use” is then a judicial question. Article 2, sec. 24, Constitution.
Section 4569, O. O. S. 1921 (6403, O. S. 1931), history S. L. 1916-11, ch. 51, sec. 1, provides:
“The condemnation * * * shall be regulated in all respects as provided by law.”
Section 4411, C. O. S. 1921, provides:
“Such appropriation of land * * * by any city or town shall be governed by the procedure prescribed for the condemnation of land for railway purposes.”
Section 4567, supra, provides no procedure of its own, and undoubtedly section 550-1, supra, governs as to nonpassing of fee-simple title from the landowner to the condemnor.
This view is in line with the Kansas rule that the extent of the interest which condemnor may take is solely within the province of the Legislature to determine.
Challiss v. Atchison Ry. Co., 16 Kan. 117 , and the rule stated in Waterbury v. Platt, 75 Conn. 387 , 96 Am. St. Rep. 229 , 60 L. R. A. 211: The provisions of statute with respect to the extent of interest or right which may be taken are to be strictly construed.
See, also, Shawnee Co. v. Beckwith, 10 Kan. 453 .
The rules of strict- construction as to the extent of the taking seem to be uniform, and reasons supporting the rule seem to have been more enduring than the suggestion stated in the majority opinion.
When the interest to be taken is not expressly stated, the condemnor is presumed to take no greater interest than an easement where an easement is sufficient to satisfy the purposes of the taking. Harris v. Elliott, 10 Pet. 25 , 9 L. Ed. 333 ; Kan. Cent. Ry. Co. v. Allen, 22 Kan. 203 , 31 Am. Rep 190.
The fact remains that it is not a governmental purpose, unless plainly made so, to take property from one citizen, to vest i-t in another, and for the government to spec-, ulate with individual property rights is abhorrent to the idea of civil liberty, notwithstanding that “the right which every individual has over his own property is always subordinate to the right which the community has over all.”
Nichols on Eminent Domain, vol. 1, p. 462, states the rule that:
“The power to condemn the fee will not be included in the grant unless it is so expressly provided.”
And:
“It is universally recognized that a grant ,pf the power of eminent domain will not be extended by implication.”
See paragraph 258, wherein the author (idem) states;
“The power of eminent domain will never pass by implication, and even when the power has been expressly granted, the grant will be construed strictly against the grantee.”
10 R. C. L. p. 89, states the rule:
“It is universally recognized that a grant of the power of eminent domain will not be extended by implication, and that when au easement will justify the purposes of the grant, the power to condemn the fee will not be included in the grant unless it is so expressly provided.”
The note to 3 L. R. A. 175, reads:
“The taking of private property for public use is in derogation, of private rights — is hostile to the ordinary control of the citizen over his estate; and therefore statutes authorizing it are not to be extended in their operation by mere implication.”
Thompson on Corporations, vol. 3, p. 683, par. 2758, says:
“Under the power of eminent domain the title acquired in and to the land appropriated is such as the statute confers.”
In the Maryland case, Binney’s Case, 2 Bland, 99 , it was held that statutes conferring this privilege deserved no favor, and to construe them liberally would be sinning against the rights of property.
“Whether a fee-simple title or an easement only is -acquired depends on the phraseology of the statute, and not the judgment of a court, for unless that court was empowered to render the particular judgment the same is void. Now as applied to eminent domain it is the expressed view that the character of the use and the question of the sufficiency of the consideration constitute the only judicial questions.”
McQuillin on Municipal Corporations, vol. 4, p. 3167, says:
“Where a statute authorizes only an easement to be acquired by condemnation, the condemnation judgment cannot vest the municipality with the fee of the land, or the exclusive use thereof, since the statute enters into and forms a part of the judgment, and limits and qualifies the nature of the condemnation therein ordered.
“On the other hand, inasmuch as eminent domain is to be strictly construed, where the
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statute is silent on the subject or is not clear as to whether it was intended to authorize or require a taking of a fee or
only
an easement, the well settled rule' of construction is that the statute will be construed to authorize the taking .of the interest only which is required by the necessity of the contemplated use.
“No implication ought to be indulged that a greater interest or estate is taken than is absolutely necessary to satisfy the language and object of the statute making the appropriation. * * * The land is taken for an avenue, and this purpose is fully satisfied by the taking of an easement in the land for the, street or highway. There is nothing inconsistent in the public use of the land for an avenue, and the retention by the landowners of the fee, subject to the easement. It is not necessary that exact or technical language should be used in a statute for taking private property for public use in order to vest the fee in the public; but it must clearly appear, before this effect can be given to a statute, that it was the intention of the Legislature, disclosed by the act itself, to take a fee.” Washington Cemetery v. Prospect Park R. Co., 68 N. Y. 591 , followed in Re Comm. of Public Works, 10 N. Y. 8 . 705, 75 Hun. (N. Y.) 419.
The phrase “eminent domain” originated in the writings of an eminent publicist, Grotius, in 1625, who says:
“The property of subjects is under, the eminent domain of the state, so that the state, or he who acts for it, may use and even alienate and destroy such property, not only in case of extreme necessity, in which even private persons have a right over the property of others.”
“But for ends of pubic utility, to which ends these who founded civil society must be supposed to have intended that private ends should give away.” Grotius De Jure Belli et Pacis, Lib. 3 c. 20; Wissler v. Yadkin River Power Co., 158 N. C. 465 , 74 S. E. 460 ; George v. Consol. Lighting Co., 87 Vt. 411 ; 52 L. R. A. (N. S.) 850, Ann. Cas. 1916C,. 416.
The extent of the interest taken under the power of eminent domain is subject to strict construction. It should be so.
“A” owns a fee-simple title — Blackacre. It came to him by descent from his ancestor. Upon it is located the home of “A”, and there are buried his ancestors, his family and their descendants. From it “A” derives the fruits of his industry, and about it he enjoys his gains. “A” wills not to part with Blackacre. “M,” a municipal subdivision, finds necessity for a specific public use of Black-acre and under the power of eminent domain, Blackacre is acquired for public use. That use ceases. Should “O” be permitted to take by purchase from “M”, and for his private use, the estate so cherished by “A” and his descendants without specific áuthority therefor? I think not. • Moreover, authority to profit, rather than use, as applied to this sovereign power, should be sparingly granted.
CULLISON, V. O. J., and ANDREWS and WELCH, JJ., concur in this dissent.