dissenting, delivered the following opinion:
As to so much of the opinion of the court in this case as holds that the appellee takes a title in fee-simple in the bed of the canal and its appurtenances, I dissent from my learned brothers.
The right of eminent domain is inherent in the state sovereignty. It is not granted by the constitution. It rests upon public necessity, and has no other foundation. It can be exercised only when demanded by the public safety or general welfare, and then only according to expressed law. The right under which it is exercised, and the acts prescribing the manner of its exercise, must be strictly construed. It can not be exercised, either directly or indirectly, for the benefit of private right. See Cooley Const. Lim., pp. 523-571, and authorities there cited.
A fee-simple in lands can be taken, against the will of the owner, by the State, only in cases of public necessity, and then only when the law authorizes it, and when com*323pensation is made to the owner for the full value of his property, and when the entire and exclusive title is taken from the owner, as in the cases of public forts, hospitals, alms-houses, colleges, schools, parks, where the exercise of the right is inconsistent with any remaining title in the owner; and in such cases there is no reversion. Heyward v. The Mayor, etc., 7 N. Y. 314; The Brooklyn Park Comm’rs v. Armstrong, 45 N. Y. 234; Dingley v. City of Boston, 100 Mass. 544; Haldeman v. The Pennsylvania Central R. R. Co., 50 Pa. State, 425.
"When land is taken, against the will of the owner, for the purposes of a mere easement, as a highway, public street, railroad or canal, and he is paid only for the easement, the State can take no more than the easement, although the law under which the title is taken declares that it shall be a fee-simple. Lands were taken in the State of Yew York, under the act of 1819, which expressly declared that a title in fee-simple should vest in the State, for the construction of the Erie Canal, and which was used as a canal till 1842 and then abandoned; and it was held, that the lands so taken, when no longer necessary for the public use, reverted to the original owners. The People v. White, 11 Barb. 26. The same doctrine has been held in reference to turnpikes and railroads.
In the case of Griesy v. The Cincinnati, etc., R. R. Co., 4 Ohio State, 308, which involved the question of taking ground for a depot, it was decided that only such interests as answered the public wants could be taken, and could he held only so long as it is used by the public, and can not he diverted to any other purpose.
In the State of Yew Hampshire, it is held, that the fee in land, taken for the purpose of constructing a railroad, remains in the owner of the soil from whom the land is taken, subject only to the easement of the corporation, and that the exclusive right of property in the land, in the trees and herbage on the surface, and the. minerals below, remained unchanged. Blake v. Rich, 34 N. H. 282.
*324In Vermont, the act under which the Central Railroad was established declared, that the company shall be “ seized and possessed of the land ” taken, yet the Supreme Court held, that it did not make the company the owner in fee, but gave it the right of way, merely. Quimbly v. Vermont Central R. R. Co., 23 Vermont, 387. To the same effect is the case of Henry v. The Dubuque, etc., R. R. Co., 2 Iowa, 288. See, also, The People, ex rel. The Detroit, etc., R. R. Co., v. Salem, 20 Mich. 452.
In the case of JEdgerton v. Huff, 26 Ind. 35, this court declared, that “ The power to appropriate property in any manner, without the consent of the owner, is in derogation of private right, and such appropriation should not interfere, beyond what the public requirements demand, with the right of the owner to enjoy his property. Where, therefore, a simple servitude is sufficient to answer the ppblic want, the courts should, in our opinion, where it is possible by reasonable construction, so limit the legislative action.” And, in accordance with this announced principle, the court held, that the right of the State to the bed of the Wabash and Erie Canal, and its appurtenances, was merely an easement, and not a fee-simple. This case is cited with approval in The State v. Bush, 29 Ind. 110, and O’Reiley v. The Kankakee Valley Draining Co., 32 Ind. 169; in which last case this court holds, that the right of eminent domain can only be exercised for a public purpose. “Under this power, lands for the construction of canals, railroads, bridges, and turnpikes are taken and compensation paid. The necessity must limit the exercise of the power so far as to require that no greater estate be taken in the land than is essential to the purpose contemplated.” The decision in the case of The State v. Pottmeyer, 33 Ind. 402, is mainly based on Edgerton v. Huff, supra. But I am awai’e that the latter case is overruled by the case of The Water Works Co., etc., v. Burkhart, 41 Ind. 364, and, of course, The State v. Bush, O’Reiley v. The Kankakee Valley Draining Co., and The State v. Pott*325meyer are also overruled so far as they conflict with The Water Works case. One of the main authorities upon which The Water Works ease was decided is Haldeman v. The Pennsylvania Cen. R. R. Co., 50 Pa. State, 425. In this case, the statute authorizing the appropriation required the viewers to assess “ the value of the land and all damages the owner or owners should sustain by reason of cutting the canal through such land.”
In the case before us, the authority of the canal commissioners was merely “ to enter upon and take possession of, and use all and singular, any lands, waters,” etc. And, in case they could not obtain the right amicably, certain proceedings were to he had, and the jury appropriating the land was “ faithfully, justly and impartially to estimate the loss or damage, if any, over and above the benefit accruing from the canal to such owner.” I can not hold, that to “ enter upon and take possession of and use” lands, means to take a fee-simple title in them; nor can I hold, that, when the damages are simply over and above the benefits, it is a compensation for the value of the fee-simple in the lands; and, in my opinion, when the act authorizes the taking of only an easement, the Legislature has no power to declare the title a fee-simple.
In the case of The Brooklyn Park Comm’rs v. Armstrong, 45 N. Y. 234, cited in support of The Water Works ease, the act under which the land was taken required, that in ascertaining the compensation to he paid to the owners, “ a just and true estimate of the value of the lands is to he made, and of the loss and damage to the respective owners, together with the tenements, hereditaments and appurtenances, privileges and advantages to the same belonging, by and in consequence of relinquishing the same to the city, without deduction for any supposed benefits or advantages; ” and on fulfilling the requirements of the act, “ the lands shall vest forever in the city.” This means the full value of the fee-simple in the lands, and is a *326very different estimate from that of damages over and above benefits.
These two authorities are the main supports of The Water Works case, and in my opinion do not sustain it; and much less, as I think, do they sustain the opinion pronounced in this case. In my judgment, the overruling of the case of Edgerton v. Huff, and virtually of the three cases which followed it, was a mistake, and a mistake that this court should now correct, and restore the law to its uniformity. This is said with the highest regard for the learned judge who pronounced the opinion in the overruling case. And the principles governing the case of Edgerton v. Huff have been essentially recognized by this court since that case was overruled, in The Indianapolis, etc., R. R. Co. v. Ross, 47 Ind. 25; Cox v. The Louisville, etc., R. R. Co., 48 Ind. 178; and Sharpe v. The St. Louis, etc., R. W. Co., 49 Ind. 296.
I agree with the opinion that it may be fairly presumed, from the lapse of time, that the canal commissioners appropriated the land of Rockhill, and that he received his damages therefor; but that presumption can not be wider than the authority of the act under which the appropriation must have been made, namely: that the right was obtained to “ enter upon and take possession of and use ” the lands, and that he was paid his damaages over and above the benefits, according to the act. Surely, no conveyance from Rockhill in fee-simple for a full compensation can be presumed, because the canal would have a right to the possession of the land without a conveyance, under the appropriating act. Time could not run against Rockhill, because he could not question the possession of the land in the canal, as long as it is used as a canal.
The proviso in the act of 1835, requiring claims for damages to be made within two years, does not bar any reversionary interest in the land; it simply bars the claim *327for damages. If the fee-simple in the lands was not taken and paid for, the reversion still remains.
I concur with the opinion of the court, however, in affirming the judgment; because the complaint shows that the appellee has all the title to the canal, and its appurtenances, that the State ever had, and all that was held by the late board of trustees; but I can not hold that the title is a fee-simple. Doubtless as long as the appellee maintains the work as a public canal, as it was originally designed to be, he can hold his franchise, and the easement in the lands. What effect the abandonment of the canal as a public work, or its change to a private purpose, might have upon the appellee’s title to the land, is a question, as I think, not presented in the record. His title to an easement in the lands is good; that will maintain his case; it was therefore unnecessary to decide that his title was a fee-simple. Slothing should be decided in a case except what must become a part of the res adjudicata.
The questions in the case are reduced to these: Could the canal commissioners, by the authority of the law to “ enter upon and take possession of and use ” lands for the purpose of constructing a canal, take a title in fee-simple in the lands, against the will of the owner? Was the assessment and payment of damages, over and above the benefits accruing from the canal to the owner, a full compensation for the fee-simple title in the land ? Can the Legislature, by a law authorizing the canal commissioners’ to “ enter upon and take possession of and use” lands for a canal, make the title they thus obtain a fee-simple in the land, by legislative enactments ?
The opinion in this ease, if I understand it, answers all of these questions in the affirmative. From so much of it I dissent. The commissioners had no power to take any thing but an easement in the lands. There is no pro- ' vision made in the acts of appropriation to pay for any thing but an easement. The public interests required no more than an easement, and, therefore, only an easement *328could be taken; and, being only an easement, the Legislature could no more make it a fee-simple than they could make a smaller quantity equal to a greater, or the part equai to the whole.