The opinion of the court was delivered by
Spencer, J.This is a proceeding by plaintiff to expropriate, in fee, lands of the defendant, alleged to be necessary for the road-bed of a railway.' In this case (by difference from that of “ N. O. Pacific R. R. Co. vs. Gay, Tutor,” reported in 31 A. 430) the defendant not only denies that plaintiff’s necessities require the quantity of land sought to be expropriated, but also denies that there is any need of expropriating the title in fee, claiming that a right of way is all that is necessary for plaintiff’s purposes.
In the case above referred to, we rested our affirmance of the judgment expropriating the fee on the ground that the defendant’s pleadings did not present an issue as to the extent of’the estate to be expropriated, but only as to the quantity of land.
The judge a quo refused to allow the defendant in the present case to enter upon the question as to the extent of the estate to be taken, holding that plaintiff was, under our statute, entitled to the fee. The question is therefore presented, whether, as a matter of right, the plaintiff can take the fee, where a less estate would answer all the needs of the company ?
There is no doubt that the title in fee of the property of a citizen may be taken, if necessary for purposes of public utility, adequate compensation therefor being made. But the only basis, for this right of expropriation, is the needs of the public. The property of no man can be taken without his consent, beyond what is demanded by the public necessity. This results, we think, from the provisions of the Federal and State Constitutions, which declare in substance that vested rights cannot be divested by the State, nor private property be taken, except for purposes of public utility. To entitle the.public to take private property, two things are necessary ; first, the interest of the public must require it, and second, adequate compensation must be made.
¥e think it a fair deduction and corollary of these propositions, that the public can take no more, either in quantity or estate, than will suffice the public wants. If necessary, the fee may undoubtedly be taken ; but if not necessary, it cannot. If a servitude or right of way *475will answer all the purposes of the plaintiff, to take more would be to violate the letter and spirit of the constitution. As we said in the case in 31 A. referred to, the question, as to the extent or nature of the estate which the public needs require to be taken, is one of fact. It is manifest that if it were a canal that was to be dug, it would require the fee, while if a turnpike or plank-road for temporary purposes was to be ■constructed, a simple and temporary right of way would be all that could be required.
We' also said in that case that we thought a railroad company clothed with perpetuity presumptively needed the fee, and that the onus was on the defendant to show that it was not necessary. The first proposition may be stated too broadly! We think it should be modified as follows: That in the absence of allegation and proof that the fee is unnecessary, the court should award the fee where the party seeking the expropriation is chartered to maintain a public work in perpetuity.
We think that defendant had the right to make this issue, and to administer the proof of it. As the damages would be less where only a servitude or right of way is granted, and as the parties have not had full opportunity to be heard on this question as to the nature and extent of the title needed, we must remand the case for that purpose.
It is therefore ordered and decreed that the judgment appealed from is avoided and reversed, and this cause is remanded to the court a qua for a new trial, and to be proceeded with according to the views herein expressed and according to law, appellee paying costs of appeal.