On Application for Rhhbaring.
Blanchard, J.The law directs that when private property is sought to be expropriated for public purposes, a jury of freeholders must be called to sit in judgment upon the value of the property to be taken and the quantum of damages the owner may suffer in consequence of such taking. Undoubtedly the award of such a jury is entitled to the highest consideration, but it is not intended by the law to be conclusive as to the amount of value of property and damages to be paid defendant in expropriation.
This is shown by the fact that an appeal from such award and from the judgment based thereon is given by the law. What would be the object, or the value, of such appeal if the power of revision of the award is not in the appellate court? It is beyond controversy that this court on appeal may and should diminish such award, if, in its judgment on the facts and the law, it be too large, or increase it if, in its judgment, it be too small.
There is no foundation either 'in the law or practice of the courts of this State for the contention of counsel for appellee that if the award be found excessive the case should be remanded for a second trial by jury under proper instructions. If the evidence in the record justifies it the court should proceed to render such decree as is warranted and proper under the circumstances.
With regard to the contention that J. W. Atkins holds a lease for several years on the plantation through which the right of way is expropriated, and that by the expropriation he loses the use of twenty-four and forty-six one hundredths acres, worth, it is claimed, five dollars per acre per annum, or one hundred and twenty-two dollars and thirty cents per annum, which he may claim as rebate *787against defendant, thus largely diminishing the amount awarded the latter, it suffices to say, first, that defendants’ answer filed herein does not mention the Atkins lease at all as an element of damage arising in-the case, and, second, that Atkins is no party to the suit and his rights are in no manner concluded by the judgment rendered herein. This court said In re Morgan R. R. and S. S. Co., 32 La. An. 375, speaking of the rights of a lessee in a case when the property under lease was expropriated: “The right of a lessee is substantive and is independent of changes in the ownership of the thing. C. C. 2733. The purchase, or expropriation, of the rights of the owner does not therefore necessarily embrace or operate upon the right of the lessee. That right in order to be affected must be itself the object of purchase or expropriation. If the rights of the owner are alone the objects of the purchase or expropriation the right of lease is unaffected and continues. The purchaser gets only the thing encumbered by the lease. That is all he can get, for that is all the owner has.”
It was held, in that case, that if the right of a lessee is worth no more than he has agreed to pay in futuro for it, the expropriation of that right would pay him nothing, as it is worth nothing. But if the right of lease will bring a greater sum than it is to cost the lessee, the latter is entitled to be paid the amount of such excess, which amount can not be charged upon the sum fixed for the rights of the owner, unless the owner has received the rent in advance, or unless the value of his right has been fixed by reference to the present actual value of the lease.
It is clear, therefore, that since, in fixing the amount we think the defendant should recover for value of land and damages, no reference is had to the Atkins lease, the- value of the latter, if any, over and above the rental he is obligated to pay, is not a charge upon the sum awarded the defendant, but is a matter to be settled between the railway company and the lessee by amicable adjustment, or by proper proceedings at law.
With regard to the contention that the judgment appealed from awards the fee of the land when there is no necessity for expropriating more than a servitude over it, and that while in the body of the opinion of this court heretofore rendered language is used which declares plaintiff company is not entitled to a judgment investing it with the ownership of the strip of land taken for right of way pur*788poses, the decree of the court itself does not make this plain, it suffices to say that our construction of the judgment appealed from is that the fee of the land is not conveyed or intended to be conveyed by it. However, we will make this beyond dispute by amending the decree of this court in that particular.
It is proper to add, however, that this issue is by no means squarely made in the answer of defendant. It should have been. Railway Co. vs. Gay, 32 An. 474.
Plaintiff company is entitled, we think, under the facts of this case, to a servitude, or right of way only, through the plantation of defendant. A right of way, in legal parlance, is held to be an easement on the lands of others. Telegraph Co. vs. Railroad Co., 49 An. 1278. Plaintiff, therefore, pays not the value of the fee of the land, but only the value of the use and occupation of the land. 16. 1279.
If the fee were being taken, since it is the more valuable right of the two, the award would perhaps be higher.
This right'of way, servitude or easement over the lands of defendant’s plantation is to endure so long as utilized for railway purposes, so long as a railway track is laid there and operated by plaintiff company, or its successors or assigns. When the strip of ground which is the subject of this expropriation ceases to be used for this purpose, it will revert to the owner of the plantation.
With regard to the contention that the amount allowed defendant by our decree for the value of the use and occupation of the land taken and damages to the plantation is too small, it suffices to say that, as we appreciate the evidence, it is all that can be reasonably justified.
The servitude awarded plaintiff occupies about twenty-four and a half acres, much of it in the woods at the time of taking. For value of this occupancy and damages something more than seventy dollars an acre is allowed, or seventeen hundred and fifty dollars.
The rehearing applied for must be refused, but the decree heretofore rendered is amended so as to read as follows: For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be amended by awarding to the plaintiff company a right of way or servitude for railway purposes over and on the lands described in said judgment, and to the extent therein described, and vesting in the plaintiff company the right of the use and occupation of the said lands for such servitude upon payment to the defendant *789of the sum of seventeen hundred and fifty dollars, reserving to J. W. Atkins, lessee, against the plaintiff, whatever rights he may have growing out of his lease of the lands so taken and occupied, and as thus amended the said judgment be and the same is hereby affirmed— costs of the lower court to be borne by plaintiff, those of appeal by the appellee.