(dissenting): In reversing the judgment two propositions of law are declared, the second being only a slight qualification or extension of the first, and in neither of them am I able to concur, nor do I find any grounds for reversing the judgment. The nature and extent of the interest taken by condemnation are always proper considerations in fixing the compensation of the owner. It was an easement that the defendant was seeking to condémn and for. which the plaintiff was asking compensation. Nothing else was involved, and no one connected with the case claimed that any other or greater interest was to be condemned. The owner is only entitled to be compensated for such estate or interest as has been taken from him. That is a correct rule of law, and I have difficulty in understanding how the statement of a true rule can be made a ground for reversal.
It may be that there is little difference between the value of a perpetual easement in land and that of . a fee title to it, but I think it would have been error for the court to have told the jury that they might award the owner the same compensation as if he had been devested of a greater interest than the one actually taken. Cases are cited where courts refused to reverse for a refusal to instruct as to the difference between an easement and a fee. But these rulings were based on the theory that the difference in value was so small as to come within the doctrine of de minimis non curat lex. Rulings refusing to reverse for errors which were not prejudicial differ materially from a reversal for giving an instruction which is theoretically correct. Even if the law had not been accurately stated the rule of the cases cited, that the difference in values of ah easement and a fee simple is so small as not to be within the notice of the law, would work an affirmance of this judgment.
It devolved upon the plaintiff to show the value of *61the interest taken, - and not of some other interest, and he has no reason to complain that the court stated correctly the interest appropriated, and for which he was asking compensation. If his testimony did not measure up to the rule it was not the fault of the court, nor did it justify the court in stating a wrong rule. If the interest of the plaintiff had been only a leasehold, or a life-estate, compensation would have been limited to the rights of which he was deprived, and the court must have so advised the jury. It was no less its duty to advise the jury of the character of the interest taken from plaintiff. Aside from this, every one connected with the case appears to have understoood alike the nature of the interest taken, and the witnesses for both parties testified freely about the market value of the land, without quibbling as to the interest remaining in the owner.
Something is said about an instruction as to the circumstances of a sale of the property two years before the condemnation, but as this instruction was based upon testimony of which no complaint is made there is little room for objection. The testimony being before the jury, it was proper to instruct them as to its weight and application. In my view the instruction given, qualified as it was by the court, is sound law, and is an instruction which is frequently given in the courts of this state. In fact, the entire charge appears to have been carefully abstracted from the decisions of this court. The last-mentioned instruction, however, is probably not regarded as reversible error, as it is not mentioned in the syllabus of the decision made.
I think the judgment should have been affirmed, and I am authorized to say that Mr. Justice Burch joins me in this dissent.