dissenting.
I am not in accord with that part of the majority opinion which holds in effect that the extent of the taking for the use intended and the quality of the title acquired is finally .adjudicated in the condemnation proceeding. Such a holding broadens the whole principle of eminent domain and imposes upon the landowner the duty to guess upon the future intentions and acts of the condemnor and, if he guesses wrong,' to be forever bound thereby.
The power of eminent domain is a power inherent in the ¡sovereignty of the state limited only by constitutional provision. The right to take private property for a public use does not grow out of the condemnation proceeding, or any order or judgment entered therein. The right to so take is finally established only when the property has actually been put to a public use. If the rule be otherwise, a condemnor could proceed to condemn for a public use with the best of motives and, because of contingencies unforseen at the time of the condemnation proceeding, could abandon the public use affording the basis of the condemnation without even jeopardizing, under the holding of the majority, the extent of the taking and the quality of the title alleged in the condemnation petition to have been necessary. Under such circumstances the holding of the majority permits a taking of private property for a private use, an act not permitted under any theory of eminent domain and expressly prohibited by the Constitution of the United States and of the several states. I submit that the 'extent of the taking and the quality of the title taken is dependent, not upon any order or judgment entered in the condemnation proceeding, but upon the nature and extent *480of the public use to which it was actually put, a question of fact entirely foreign to a fixing of the damages in a condemnation suit.
The judgment entered in the condemnation proceeding in the District Court of the United States for the District of Nebraska in the suit to condemn the lands involved in the present action awards a judgment for damages “in full and complete satisfaction of any and all damages against said defendant by reason of the defendant’s taking and appropriating the lands of the plaintiffs, as aforesaid, for the uses and purposes related in the application of the defendant District in these proceedings, * * There is nothing in the verdict rendered by the jury or the judgment entered thereon that does anything more than to make an award of damages. Nowhere does it appear that any attempt was made by the court or jury to determine the extent or quality of the title taken by the defendant. In addition to this, it appears in the order entered after pretrial hearing that “The only issue in this case, as agreed between the parties, is the question of damages for reason of the condemnation proceedings.” I submit that there -is no basis whatever for the holding of the majority that the extent and quality of the title was finally determined in the condemnation proceeding under the record in that case. How it can be said that this issue was finally determined in the face of a stipulation that it was not an issue and where the verdict and judgment make no mention thereof, is beyond the comprehension of the writer. It is also interesting to note that there is in evidence a contract between the parties to- this suit by which the plaintiff repurchased the buildings and improvements on the land condemned, which contains, the following recital r “WHEREAS, the question of the nature of the title was not adjudicated in the United States District Court, granting first party possession of said premises and it is agreed that the entering into, of this agreement shall be without prejudice or estoppel to either party with reference to the *481nature of the title to said premises, * * * .” It is evident from this statement that the majority opinion assumes-with reference to the condemnation proceeding a position which both parties admit did not exist.
A plea of res ad judicata cannot be sustained where the issue involved was not adjudicated pursuant to a stipulation of the parties. In Anderson v. Kreidler, 56 Neb. 171, 76 N. W. 581, we said: “To sustain a plea of prior adjudication the matter in question must be shown to have been of the issues joined and tried in the former action.” How can the nature of the title taken be “of the issues joined and tried” when the parties solemnly agreed in open court that the only issue was the question of damages ? For the majority to say in effect that the quality and extent of the title taken was finally adjudicated under the situation revealed by this record, is to- extend the principle of prior adjudication far beyond the limits of any cases we have been able to find on the subject.
It is well settled that condemnation for a nonpublic use is a denial of due process of law under the Federal Constitution. Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 17 S. Ct. 56. It is also well settled that whether the use is public or private is a judicial question. Hairston v. Danville & Western Ry. Co., 208 U. S. 598, 28 S. Ct. 331. The following statement of the law appears in New Orleans P. Ry. Co. v. Gay, 32 La. Ann. 471: “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 *482things are necessary; first, the interest of the public must require it, and second, adequate compensation must be made.
“We 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 will 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 noteworthy that in Smith Canal or Ditch Co. v. Colorado Ice and Storage Co., 34 Colo. 485, 82 P. 940, the court refused to recognize that condemnor obtained a fee title, although the applicable statute authorized it on the theory that an easement was all that was required and that the statute contemplated that he was. entitled to nothing more. In Kellogg v. Malin, 50 Mo. 496, it was held that nothing more than an easement was acquired by the condemnation, even though the statute authorized the taking of a fee simple title. These cases bear out the fundamental concept of eminent domain — the taking of private property in the exercise of the right of eminent domain must be limited to the reasonable necessities of the case so far as the owners of the property taken are concerned. Newton v. Newton, 188 Mass. 226, 74 N. E. 346. The Legislature clearly has.the power to effectuate the right to take for a public purpose by condemnation proceedings, but it lacks the power to authorize the taking of more than the sovereign power of eminent domain itself authorizes. If it had and exercised such power, it would amount to a taking of private property for a private use insofar as the excess is concerned.
It is clear in the present case that the statute authorizing the condemnation does not expressly state the interest' *483to be taken. Under such circumstances, the condemnor is presumed to take no greater interest than an easement, where an easement is sufficient to satisfy the purposes of the taking. Michigan C. R. Co. v. Garfield Petroleum Corp., 292 Mich. 373, 290 N. W. 833; Harris v. Elliott, 10 Peters 25, 35 U. S. 25; Newton v. Manufacturers’ Ry. Co., 6 Cir., 53 C. C. A. 599, 115 F. 781. The general rule is stated in an authoritative text as follows: “In the absence of any definition of the estate which the grantee of the power is authorized to acquire or any limitations in the granting statute, no more property can be taken than the public use requires; this rule applies both to the amount of property and the estate or interest in such property to be acquired by the public. Furthermore, it is universally recognized that a grant of the power of eminent domain will not be extended by implication, and that when an easement will satisfy the purpose of the grant, the power to condemn the fee will not be included in the grant unless it is so expressly provided. Accordingly, it is well settled that when land is taken for the public use, unless the fee is necessary for the purposes for which the land is taken — as, for example,- when land is taken for a schoolhouse or the statute expressly provides that the fee shall be taken— the public acquires only an easement. The public easement, or servitude as it is sometimes called, in such a case extends to all uses directly or incidentally conducive to the advancement of the purpose for which the land was acquired, and to no others; and the owner retains the title to the land in fee and the right to' make any use of it that does not interfere with the full and free exercise of the public easement.” 18 Am. Jur., Eminent Domain, § 115, p. 741.
Consequently, assuming the correctness of my position that res adjudicate, is not a defense in the present action, we must look to our own decisions to determine the extent and quality of the title taken in a condemnation proceeding for the flooding of private lands. The rule has been gen*484erally stated in this state to the effect that a petitioner in a condemnation proceeding to secure the right to overflow private lands does not, by a judgment in his favor and the payment of the damages assessed,. acquire the right in perpetuity to flow such lands, but secures a privilege (easement) which may be lost by abandonment or nonuse for an unreasonable length of time. Gross v. Jones, 85 Neb. 77, 122 N. W. 681. See, also, Lucas v. Ashland Light, Mill & Power Co., 92 Neb. 550, 138 N. W. 761.
The foregoing not only appears, to be the rule in this state, but it appears to be the general rule in other jurisdictions. In Warm Springs Irrigation District v. Pacific Live Stock Co., 270 F. 560, it was said in a case involving a statute similar to the one before us: “This is not to say that a fee-simple title to land may in no instance be taken by irrigation districts in condemnation proceedings under the Oregon laws, nor to say that for a dam site it may not become necessary to condemn the title to land. But for a reservoir site there can be no question that the demands of necessity are met by the condemnation of an easement. * * * The ultimate question when all is said, is: What interest in land did the Legislature intend should be taken for a reservoir site? The answer, in the absence of a clearly expressed intention to the contrary, is that the intention was that there should be taken no greater interest than that which might be necessary for the purpose intended. Here there is no clearly expressed intention to the contrary.”
In Board of County Commissioners v. Hufford, 126 Kan. 106, 266 P. 932, the county condemned a 12-acre tract for a gravel pit. The court held: “Our condemnation statutes do not authorize the taking of the fee. The title to the twelve acres did not pass by the condemnation proceedings under R. S. 68-137, nor was a transfer of ownership effected thereby.” If the taking of land for a gravel pit does not require the taking of the fee, how can it be said that a flooding of lands would require it?
*485It seems to me that the majority opinion is in gross error in holding that it was shown by the condemnation proceedings that the district intended to and did condemn a fee title because (1) it was specifically stipulated that the nature of the title was not involved; (2) that under no circumstances, in the absence of statutory authority, could the condemnor take more than was reasonably necessary to accomplish the public purpose for which it was taken; (3) that under our holdings an easement is all that is required in the flooding of lands for reservoir purposes; (4) that the condemnation proceeding is not a prior adjudication of the nature and extent of the title taken, that question being determinable only from the use to which it is actually put, .even in the absence of an exclusionary stipulation; and (5) that the only issues that can properly be litigated in a condemnation proceeding are the existence of a public purpose and the damages resulting from the use of the property in the carrying out of that public purpose.
Simmons, C. J., and Yeager, J., concur in dissent.