Oral argument was had herein on rehearing. It is insisted that, conceding that the condemnor might take a fee-simple title by condemnation, the proceedings herein purported only to take a lesser right, that is, only a "right of way," and not the land itself. This necessitates an examination of said proceedings to determine the extent of the interest acquired thereby.
The petition, filed May 19, 1900, recited that the petitioner, Oklahoma City Terminal Railroad Company, was authorized, under the provisions of art. 9, chap. 17, Statutes of Oklahoma 1893, to purchase real property for railroad and right-of-way purposes, and, if necessary, to appropriate the same by condemnation proceedings. The petition further recited the necessity for the taking of the land involved herein, describing the same; that it had endeavored to purchase said land from Estella Newell, the owner thereof, but that it had not been able to agree with her as to the price to be paid for the right-of-way and land taken; that Frank P. Newell was the husband of Estella Newell and claimed some interest in the land. The prayer of the petition was for the appointment of commissioners to appraise the damage to be sustained by Estella Newell by the appropriation of her land and by the building of the railroad and for the condemnation for the benefit and use of the company of "all the right, title and interest" of Frank P. Newell and all the interest, if any, of Thomas Newell, a mortgagee of said property.
Publication notice was issued to the owners of the land and the mortgagee notifying them of the filing of the petition, and that the prayer thereof was for appointment of commissioners to *Page 475 assess the damages to be sustained by the construction of the road and for the land "necessary to be appropriated . . . for right of way purposes." On June 11, 1900, commissioners were appointed to assess the damages that the owner "of said land may sustain by reason of the condemnation and appropriation of land necessary for railroad and right-of-way purposes," and to determine and condemn the interest of Frank P. Newell, husband of Estella Newell.
On June 23, 1900, the commissioners appointed by the court subscribed to a written oath that they would inspect the property and consider the injury to be sustained by the owner by reason of the "appropriation of said real property for railroad purposes."
On June 23, 1900, the commissioners filed their report with the court to the effect that on June 23, 1900, they went upon the land and inspected the same and considered the injury and damage which Estella Newell would sustain by reason of the appropriation of the right-of-way across said land, and after finding that two specific parcels of land were necessary to the construction of the road, directed that said land be condemned and set aside for the use and benefit of the railroad company for right-of-way and railroad purposes. The first parcel was a tract consisting of .27 of an acre which was required for construction of the main line. The commissioners found "thevalue of the land required for said main line to be $100," and resulting damage to the property not taken to be $60. The second was a parcel consisting of .068 of an acre necessary for the construction of an "S" line. It was found that "the valueof the land required for said 'S' line to be $40," and the damage to the remainder of the property not taken was $20. The total amount of damage awarded to Estella Newell was $220, which includes, in full, the amounts found to be the value of the land taken.
It is noted that the petition for condemnation of the property referred to the specific statutes authorizing it to acquire fee-simple title to property, thus indicating that the condemnation proceedings were instituted pursuant to said specific grant of power. Throughout the proceedings it is noted that when reference is made to the taking of the land the word "appropriation" is used. A well-understood meaning of the word "appropriate" is "to set apart for, or assign to, a particular purpose or use, in exclusion of all others." Webster's New International Dictionary; 3 Words Phrases (Perm. Ed.) p. 803 et seq. It is noted that the parties also made use of the words "take" and "condemn." The word "take" is given a variety of meanings in the respective fields of the law wherein it is employed. "Condemnation" is an enforced sale, and the condemnor stands toward the owner as buyer toward seller. Jackson v. State, 213 N.Y. 34, 106 N.E. 758, L.R.A. 1915D, 492.
The law in effect at the time the property was condemned authorized the railroad to acquire a full fee-simple title. We find nothing in the condemnation proceedings indicating an intention on the part of the condemnor to take any lesser estate in the property condemned, and we therefore conclude that the parties intended to take such title as they were authorized and empowered to take under the applicable statute. We therefore hold that the title taken was a full fee-simple title.
CORN, C.J., GIBSON, V.C.J., and RILEY, OSBORN, BAYLESS, WELCH, and DAVISON, JJ., concur. HURST and ARNOLD, JJ., concur in conclusion.