(dissenting).
I cannot agree with the majority opinion that the City of Nashville acquired only an easement in the land which was condemned for the widening and rebuilding of Lafayette Street. It is undisputed that in order to open and extend the street from 2nd Avenue to 8th Avenue it became necessary for the city to obtain title to many pieces of property, including that which belonged to Mrs. Hicks. And it was manifestly a difficult matter to determine with exactness the amount that might be needed for this improvement. In the condemnation proceedings it was alleged in the bill: “Public necessity exists for the City of Nashville to acquire and hold for a public highway and street purposes . . ,”.
The jury of view awarded the property owner the sum of $7,500.00 and later, while the case was pending on appeal she was paid as a compromise settlement the sum of $15,000.00. She now claims the absolute title to the small triangle which was not used by the city in opening the street notwithstanding the judgment of the circuit court clivestecl title out of her and vested it in the City of1 Nashville. It is argued that there was vested in the city only “title to an easement” because the judgment of the court recited that title was divested out of Catherine E. Hicks and vested in the City of Nashville, “to be used for the purpose for which it was condemned”. This was a consent decree and I am unable to agree that it was a consent only as to the amount of *688compensation. Of course it was acquired for a public purpose. But this is not inconsistent with the right to a fee in the land. It is quite true that the law favors an easement rather than a fee where the extent of the right is doubtful. At the same time it cannot be said that a municipality cannot acquire other than an easement in land for opening, widening and improving a street.
In 1923 the Legislature enacted the following statute, the same being brought into Williams’ Code as Section 3398:
“Municipal corporations are empowered to condemn the fee. — Whether any municipal corporation shall seek to condemn lands to be used in establishing, widening, extending, or otherwise improving its public streets, alleys, highways, parks, parkways, or boulevards, it shall have full power to condemn the fee of the land necessary to., be..taken, by paying the fair cash market value thereof to be fixed in the manner provided by law where private property is taken for public use.”
Considering the amount of money which the city paid the owner for this property ($15,000.00) it is inconceivable to my mind that it was only for a right of way and not a full title to the land. It- represented “the fair cash value” of the property, and there is nothing in the record to indicate that the owner did not fully understand that she was parting with the fee. I readily concede that there is and should be a limitation upon the power to condemn property, i. e. it must be for a public purpose, otherwise the power could be abused to the possible injury to property owners. But no one contends that the power has been in any sense abused in the instant case. - If it is necessary for a city to acquire a *689fee for a public purpose, which is often the case, and pay the full cash value for it, the property owner should not have the right to assert title by way of reversion to that portion which had not been wholly used without refunding to the city the reasonable value of that which he seeks to reclaim.
Under Code Section 3398 full authority was granted municipalities to acquire a fee by condemnation, and the power to condemn was not restricted to procedure as outlined in Sections 3397, 3398, 3401 of the Code. The case of Tenn. Power Co. v. Rust, 8 Tenn. Civ. App. 368, cited in the majority opinion and holding that it was beyond the jurisdiction of the court to condemn the fee, was decided in 1918 and long before the passage of Chapter 76, Acts of 1923 and appears in the Code under Section 3398. I fail to see wherein the city in proceeding under Sections 3109 et seq. of the Code is thereby precluded from acquiring a fee simple title.
I am unable to agree with the majority that the concluding words of the decree divesting and vesting title, “to be used for the purposes for which [the land] was condemned” operates to give the city only an easement. The word “title” denotes “full, independent and fee ownership.” In re Pelis’ Estate, 150 Misc. 918, 271 N. Y. S. 731, 733; Thompson on Real Property, Vol. 5, Section 2395.
In Carroll v. Griffith, 117 Tenn. 500, 505, 97 S. W. 66 the Court was dealing with the authority of the trial court to divest title out of the owner and vest the fee in the public. The decision was that it could not. I find no fault with this holding since the statute then under consideration did not authorize the taking of the fee.
*690In 19 Am. Jur. (Estates) Section 36 it is said:
“Grant for Particular Purpose. — The general rule is well settled that the mere expression that property is to he used for a particular purpose will'not in and of itself suffice to turn a fee simple into a determinable fee.”
In Section 72 is found the following statement:
“Examples of the application of the rule that a mere recital of purpose does not import a condition will be found in grants for the erection of1 various public buildings and for municipal purposes generally, for the erection of shoolhouses, for school grounds and educational purposes, for churches, for cemeteries, for highway purposes, for railroad use, for county purposes, and for use of a particular business.”
The above text is supported by Murdock v. Memphis, 47 Tenn. 483; Newman v. Ashe, 68 Tenn. 380; Walker v. County School Board, 150 Tenn. 202, 263 S. W. 792.
In Nashville C. & St. L. Ry. v. Bell, 162 Tenn. 661, 39 S. W. (2d) 1026 the Court held that a deed to the railroad containing language of the same import as in the instant case conveyed a fee and not an easement. To the same effect is Baird v. Southern Railway Co., 179 Tenn. 366, 166 S. W. (2d) 617.
The petition for condemnation in the instant case shows beyond question that the City of - Nashville intended to acquire a fee simple title. It does not seek a “right of way” or an “easement”, but specifically prays that the “title” be vested in the city, and that “upon the determination of the value of the fee etc. that the city be permitted to pay into court the value of said fee to each of the properties.” (Emphasis supplied.)
I cannot agree with the majority that the city abandoned this property in the sense that it disclaimed title *691to it. What happened was that the city condemned a great many pieces of property in this proceeding. Following the completion of the project there remained* the property now in controversy and small portions of other properties which had not been nsed in opening the street. The city thereupon advertised for sale these small leftover strips of land and transferred them to the several purchasers. In so doing it did not abuse its power of eminent domain. Since the original owners received full cash value for a fee to their property the city was within its rights in disposing of the same. It committed no act that was prejudicial to the public interest or in derogation of the rights of the original owners.
This consent decree, divesting title out of Mrs. Hicks and vesting it in the City of Nashville, has no greater probative force than a deed of conveyance. She parted with the whole title and was paid the full cash'value for it. If this were a direct attack upon the conveyance by the city to its co-defendant, GarfinMe, upon ground that the city acquired only an easement, no relief would be granted except on the condition that complainant refund a part of the original purchase price. The city might well defend against such an unjust claim under the maxim, “He who seeks equity must do equity.”
Upon the authorities cited and for the reasons stated herein I respectfully dissent from the majority opinion.