[27] I do not agree with that portion of the majority decision in which it is determined that the defendant railroad has only an easement in the 200 foot wide strip of land extending across the property and that, subject only to this easement, the plaintiffs own the fee title therein, specifically including the mineral estate underlying said land. It is my opinion that, under the present circumstances, the railroad owns the fee simple title to the strip of land including all the mineral estate therein.
[28] The condemnation proceeding of the railroad's predecessor was in 1901 and was *Page 274 pursuant to Art. 9, Chap. 17, Okla. Statutes of 1893, 66 O.S. 1961, Sec. 1 [66-1] et seq. This was prior to the limitation in Art. 2, Sec. 24, Oklahoma Constitution, providing "The fee of land taken by common carriers for right of way, without the consent of the owner, shall remain in such owner subject only to the use for which it is taken."
[29] In Oklahoma City-Ada-Atoka Railway Co. v. Rooker, Okla.,355 P.2d 552, we stated:
"The 1893 Statutes (Art. 9, Chap. 17, Okla.Stat. 1893) conferring power of eminent domain upon a railroad to acquire property for railway purposes through condemnation proceedings authorized but did not require that title acquired by or through such proceedings be a fee simple title; and, in order for a fee simple title to be acquired under the 1893 Statutes, supra, the condemnation proceedings must clearly show an intention to acquire such a title and that such title was in fact acquired under the condemnation proceedings."
[30] The Rooker case further held that where the proceedings under the 1893 Statutes had proceeded through the Commissioner's Report and payment of the condemnation money, and no exceptions had been filed thereto and no demand had been made for a jury trial, no further proceedings were necessary, and the report, if allowed to stand without objection, serves to pass the use or title condemned.
[31] The majority opinion correctly recognizes that the present situation falls within the statements of law quoted from City of Seminole v. Fields, 172 Okla. 167, 43 P.2d 64, and Shell Petroleum Corp. v. Town of Fairfax, 180 Okla. 326, 69 P.2d 649, relative to circumstances in which appropriation by an entity with power of eminent domain is "equivalent of a title by condemnation regularly acquired," even though there be some defects in the condemnation proceedings.
[32] In prior cases this court has examined the condemnation proceedings and determined the nature of the title acquired from the terms and language used therein.
[33] In the present case the notice to the owner of the quarter section of land notifies him that the railroad company (predecessor of defendant) desires to construct its railroad over the "estate," and "* * * that a strip of land out of said real estate bounded as follows: (describing it) * * *, a strip of land two hundred feet wide is desired, being one hundred feet wide on each side of the center line of said Railway survey, * * * containing in all Eight and Eight hundredths acres, is necessary for said railroad and will be taken and appropriated by said Railway Company therefor." and that the Commissioners will "* * * inspect said real property and consider the injury which you may sustain by reason of said railroad, and to assess the damages you will sustain by such appropriation of your land."
[34] The Report of Commissioners recites their appointment to consider the injury the owner "may sustain by reason of the railroad * * * being located, constructed and operated and maintain over and through the said real estate and to assess the damages which said owner will sustain by reason of the appropriation of so much of said real estate as is necessary for said railroad * * *." and assessed the damages the owner "will sustain by the appropriation of so much of said real estate * * *;" and found "the wuantity of land desired by said company, and necessary and taken by said railroad, out of the real estate above described, to be ____ acres; that the boundaries of said real property so taken and necessary for said railroad are as follows: * * * a strip of land 200 feet wide * * * in all Eight 8/100 acres; that the value of the property so taken is the sum of 27 16/100 dollars, and that the amount of injury and damages done to said real property is included in the above." and do assess to "the owner of said real estate, the said value, injury *Page 275 and damages at the total sum of Twenty-seven 16/100 Dollars."
[35] This language and the terms used can only mean that the railroad desires and is taking and appropriating a described strip of land 200 feet wide, extending through the owner's property, consisting in all of 8.08 acres. It is further pointed out that the sum fixed by the Commissioners covered the items of the value of the property taken ("a strip of land 200 feet wide") and the injury and damages to the balance of the owner's property.
[36] It is my opinion that such language clearly shows that the railroad desired, intended, and did take and appropriate a fee title to the strip of land.
[37] In Jones v. Oklahoma City, 192 Okla. 470, 137 P.2d 233, 155 A.L.R. 375, the condemnation proceeding was pursuant to the 1893 Statutes, supra. The petition prayed for condemnation of "all the right, title and interest" of the owner. The subsequent proceedings through the report of the Commissioners used language concerning damages 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 the effect that two specific parcels of land were necessary, and directed that said land be condemned, consisting of .27 of an acre and .068 of an acre, and findings that the "value of the land required for said main line to be $100.00" and resulting damage to property not taken to be $60.00, and "the value of the land required for said `S' line to be $40.00" and damage to property not taken was $20.00. The decision held that the railroad acquired a fee simple title.
[38] I recognize that the petition in the Jones case prayed for condemnation of "all the right, title and interest" of the owner, and the majority opinion states this "would seem to have removed all doubt as to the quantum of estate taken." However, the conclusion in the Jones case was based upon a consideration of all of the language and terms employed in the condemnation proceeding. Furthermore, it was held in Oklahoma City-Ada-Atoka Railway Co. v. Rooker, supra, that under the 1893 Statutes, supra, it was the report, if allowed to stand without objection, that passed the use or title condemned, and that it had the force and effect of a judgment in such case under the statute. It would appear that the report would be the strongest evidence of the use or title condemned.
[39] It is again pointed out that in both the Jones case, supra, and in the present case the proceedings state it is "land" that is being taken and appropriated by the railroad. In Missouri, K. T. Ry. Co. v. Miley, Okla., 263 P.2d 415, 417, this court emphasized the fact that in the Jones case there was a condemnation of "the land" and therefore a condemnation of the fee simple title. The decision holds that the issue (extent of use and title) in condemnation is much the same issue presented, as to voluntary conveyances, in Aubert v. St. Louis-San Francisco Ry. Co., 207 Okla. 537, 251 P.2d 190, and quotes from 132 A.L.R. 142, 144, as follows:
"* * * If a deed to a railroad company contains nothing more than a grant of land, adequately described, the cases are practically unanimous in reaching the conclusion that it conveys a fee; but if such a deed contains nothing more than the grant of a right, — they are equally unanimous in reaching the conclusion that it creates a mere easement over the land in question."
[40] The decision concludes "That same rule of construction is applicable to condemnation proceedings."
[41] The case of Meriwether v. Gulf Oil Corporation, Okla., 298 P.2d 758, is not in point as to facts, but it does demonstrate the meaning attached to the use of the word "land." In that case a legislative act authorized, inter alia, the acquisition of "land" by condemnation for construction of a State lake, camp sites and lodges. Subsequent to the condemnation proceeding the controversy arose as to whether the State had acquired the minerals in a condemned tract. The decision quotes the *Page 276 statutory definition of "land," 60 O.S. 1961, Sec. 6 [60-6], as follows:
"Land is the solid material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock or other substance."
[42] and because of this and other reasons, concluded that the authorized condemnation of a specified number of acres of "land" included all minerals therein.
[43] It is my opinion that under the above authorities the described and quoted portion of the condemnation proceedings clearly show an intention on the part of the railroad company to acquire fee simple title to the 200 foot wide strip of land, and not merely an easement, and that it did in fact acquire a fee simple title. The entry thereon in connection with the proceedings above mentioned and the construction of the railroad was effectual to vest such title, the same as by condemnation regularly acquired.
[44] For the reasons above stated I dissent to that part of the majority opinion holding the defendant railroad has only an easement in the strip of land.