dissenting.
The issue here is not one involving a controverted point of constitutional law; rather it is one involving solely the question of whether the poles and lines of an electric power association constitute an additional servitude entitling the owner of the fee to additional compensation. If there is no new or additional servitude, Section 17 of the Constitution has no application.
*279The majority opinion correctly states that the constitutional guarantee aainst the taking or damaging of private property is self-executing, and can not he overridden by the public policy of the State. The statutes authorizing the construction of electric power lines along highways of this State do more than declare the public policy of the State in reference to the use of the highway rights-of-way; they define the uses to which the highway rights-of-way may be put and the uses authorized by these statutes are not inconsistent with the traditional public uses for which highways exist. 25 Am. Jur., Highways, Par. 171, p. 467.
Thus the statutes define certain burdens of the easement acquired for highway purposes. When the appellant executed his right-of-way deed to the Mississippi State Highway Commission, he conveyed an easement with these servitudes a part of the estate conveyed, and no constitutional question exists. Property already conveyed to the State is not the subject of any constitutional protection.
Moreover, I think the statutes referred to are declarative of the general custom and usage. Highway rights-of-way have been used for many years to accommodate the facilities for transporting messages and electrical energy without additional compensation to the owner of the fee, and the universal acceptance on the part of the public that the servitudes imposed by highway right-of-way easements expand to accommodate advances in methods and means used in transporting passengers and commodities without any additional compensation to the owner of the fee.
But quite apart from any weight or consideration being given to the statutes, I believe there is sound reason-why electric power associations have the right to construct and maintain electrical power lines over the public highways of this state without additional payment to the owner of the fee, and consistent with official permission, regulation and control.
*280When the case of Stowers v. Postal Telegraph and Cable Company, 68 Miss. 559, 9 So. 356, was decided (1891), highway transportation consisted of pedestrians, animals, and animal drawn vehicles. The motor vehicle age was yet to come; the incandescent bulb had recently been invented; the use of electric power for lighting purposes was practically unknown; the first practical telephone had been patented only a few years; and telephone and power lines were unknown on the highways of this State. Vast changes have taken place in highway use, communications, and transportation since 1891. For many years now the highways have accommodated, without additional compensation to the owner of the fee, and with universal public acceptance, motor vehicles of great variety and fantastic speeds as compared to horse-drawn vehicles; highways have long since become the place where huge trucks carry substantial amounts of freight, and buses maintain regular passenger schedules. Likewise, for many years now, and by what I think to be universal public acceptance, the highways have been used as a place to maintain telephone and electric power lines for the transportation of messages and electrical energy — and these, uses are as much in the public interest as is the vehicular traffic. The transportation of electrical energy along the highways for delivery to home and businesses is necessary for the public convenience. Electrical energy is a daily household necessity. It was not so in 1891. All these changes in the servitude of the highway easements came about by common consent of the public and the owners of the fee under the rights-of-way. This progress and these changed conditions cannot be ignored by the courts.
That the law is not inflexible is well settled. The law is progressive and expansive, adapting itself to new relations, interests, and conditions created by the progress of society.
*281Burrall v. American Telegraph Co., 224 Ill. 266, 8 L. R. A. (N. S.) 1091, 79 N. E. 705, was decided in 1906, which was before the law evolved to meet the needs and demands of more recent developments of society. In that case there was no statute giving the telegraph company the right to erect poles and lines on the highway. I think that case is inapplicable here.
The majority opinion refers to 18 Am. Jur. 834, Par. 204. The pertinent portion of that text is as follows: “As to whether a telegraph or telephone line can be erected and maintained upon a public street without compensation to the owner of the fee is a question upon which there is a direct conflict of authority. On one side it is said that a telegraph or telephone line is but an improved method of subjecting the streets of a city to an old use, and that the poles and wares are just as necessary adjuncts to this newr method as are the poles and wires of a street railway or an electric light plant, erected in substantially the same manner, and no more •obstructive. Accordingly, many authorities are to the •effect that the poles and wires of a telegraph or telephone line are not an additional servitude upon a public highway, and they are supported by the very sound reasoning that a message sent along the wires in a street takes the place of a messenger and thus relieves the street of much of the use to which it would otherwise be subjected. On the other hand, it is argued that the use of streets for the permanent maintenance of poles and' wires occupying a portion of the street is a use not contemplated in the laying out of streets generally; and, reasoning on this basis, it is the rule in many other jurisdictions that a telegraph or telephone line is an additional servitude upon a public highway.”
If it is sound reasoning to say that since telephone and telegraph messages take the place of the messenger and relieves the streets of much of the use to which it would otherwise be subjected, and, therefore, the telephone and telegraph poles and lines are not an addi*282tional servitude, why is it not just as sound to hold that electric power lines are not an additional servitude because the electricity takes the place of the coal, kerosene, and wood that would otherwise have to be hauled to the residences and businesses and industries along the highway?
The case of Whitworth v. Mississippi State Highway Commission, 203 Miss. 94, 33 So. 2d 612, is cited in the majority opinion. That was a suit by the State to cancel the claim of the grantor of the right-of-way to the oil, gas and other minerals underlying the right-of-way. The case held that a right-of-way easement only was acquired under the statutes, notwithstanding the deed purported to convey the fee. The issue of the extent of the easement was not in any manner involved.
The majority opinion cites 18 Am. Jur., p. 837, par. 206. That text was prepared without any apparent consideration of any statutes such as those which our legislature had enacted prior to the acquisition by the State Highway Commission of the easement from Berry.
In 39 C. J. S. 1078-1079, Highways, par. 139, it is said: “While it has been held that the easement includes the right to erect telephone, telegraph, and electric light and power poles, there is also authority to the contrary. ’ ’
The authorities all agree that an abutting owner has two distinct kinds of rights in a highway, a public right 'which he enjoys in common with the public, and certain private rights which arise from his ownership of property contiguous to the highway, and these rights exist regardless of whether he owns the fee of the highway. These rights include (1) the right of access, (2) view, (3) light and air, (4) lateral support, (5) the right to have the highway kept open as a thoroughfare, and (6) the right to use the right-of-way not inconsistent with the public use. 39 C. J. S. 1079, par. 141. The text of the last mentioned authority includes the statement that ‘ ‘ the mere disturbance of the rights of the abutting own*283ers by the imposition of new uses on the highway consistent with highway purposes must be tolerated.”
Highways are established and maintained primarily for the convenience of public travel. But there are numerous other purposes for which highways may be used such as for water mains, gas pipes, telephone and telegraph lines, and electric power lines. State v. Board of Commissioners of Walla Walla County, 184 P. 2d 577, 172 A. L. R. 1001; Annotation, 172 A. L. R. 1020. And these are of a public nature. 25 Am. Jur. 467, Highways, par. 171.
The easement acquired by the State is not confined to the right of passage or travel; for it is a matter of common knowledge, and, therefore, of law, that an easement in land acquired by the public creates a burden on the fee coextensive with all the incidents of the easement. 1 Elliott, Roads and Streets, par. 495; 25 Am. Jur., Highways, Par. 171.
As against the public, however, his (owner of fee) privileges vary conversely to the extent of the actual public use. He may make every use of the land within the limits of the highway, above, upon, or below the surface of the ground, that does not interfere with the public easement as it is actually exercised, and a country road only occasionally travelled may constitute only a slight incumbrance on his fee. As population increases and the public needs advance, the owner’s privileges are diminished and he may thereby suffer damage. He is not entitled to compensation, because such damage was paid for when the way was laid out and the easement of indefinite public travel taken. It would prove an intolerable nuisance to the landowners, the courts, and the public, if a whole new set of actions was brought whenever a new pipe or wire was laid in an existing street. 3 Nichols on Eminent Domain, Third Ed., par. 10.1.
It seems to be the general rule that where there is a conflict between the rights of the public and the owner of the abutting property, the rights of the owner of the *284fee are subordinate to tbe public. As the public requirements grow larger, tbe privileges of the owner of the fee decreases. 3 Nichols on Eminent Domain, Third Ed., 235, par. 10.211(2).
It has been generally held that sewers and drains may be laid in a public highway without additional compensation to the owners of the fee. Water pipes for the purpose of supplying the public with water are considered a proper use of the easement for highway purposes. There has been little opposition to the laying of gas pipes for distributing illuminating gas, but some courts have held that such pipes may not be laid without compensation to the owners of the fee. With respect to the overhead use of highways by the stringing-of wires on poles, there has been much litigation and decided conflict of opinion. Most of the litigation has been in reference to telephone and telegraph poles and wires. It appears that a slight majority of the states in which the question has arisen have held that overhead telephone and telegraph lines constitute an additional servitude upon public highways; although a nearly equal number have taken the opposite view. There is also a conflict of authority on the question of the erection of poles and lines along highways for use in distributing electrical energy for light and power to be used by the homes and businesses along the highway. See 3 Nichols on Eminent Domain, Third Ed., Chap. 10.
Most of the authorities hereinabove discussed, except the case of State v. Board of Commissioners of Walla Walla County, supra, did not involve special statutes defining the special uses to which highways may be put such as those enacted by the Mississippi Legislature prior to the acquisition of the right-of-way from the appellant Berry.
Following the ease of State v. Board of Commissioners of Walla Walla County, supra, and at 172 A. L. R. 1020, there is an annotation on the subject, “Use of Streets and Highways by Co-operative Utility,” wherein *285it is said, in part, as follows: ‘ ‘ Great impetus was given to the establishment of such electrical co-operatives by the passage, in 1936, of the Federal Rural Electrification Act, 7 USCA, Sec. 901 et seq., 2 FCA, title 7, Secs. 901, et seq. And the building of great dam establishments with attendant creation and supply of power, such as those in the Pacific Northwest of Grand Coulee and Bonneville, and, more notably, the Tennessee Valley project, have spurred to greater and greater extent the establishment of co-operative electrical companies or projects. The question therefore becomes of considerable importance and constantly increasing practical significance in the law whether such co-operative utilities, under the laws in force and effect in a particular state, have the right to occupy, with their apparatus and equipment, the public streets and highways, and, whether, under such laws, the officers of local political subdivisions have the power to grant to such co-operatives a permit or franchise to use the public highways and streets . . . With respect to the law of highways, there seems to be little doubt, in modern American law, that where proper authorization is secured in necessary cases, and when authority has been granted by the state, local authorities may grant permission to different individuals, corporations, and projects to use the streets and highways for special, permissive, and incidental uses. . . Finally, since the rights of abutting landowners may be involved, and since the use of the streets and highways for co-operative utility purposes constitutes, at least by way of argument, new, additional, and other uses of such streets and highways, the question arises whether such use by co-operative utilities imposes an additional servitude upon the road or street for which compensation must be paid. This question of compensation for additional servitude under similar circumstances is one which has been complicated by many factors, has been much litigated in the American courts, and has resulted in many different determinations, since the authorities. *286are divided upon almost all specific factual aspects of the problem.”
As will be noted hereinafter, the easement in the case before us was obtained under specific statutory authorization. The law, as developed, and concerning which there has been so much conflict in authority, was based on the general law governing the use of highways and its development, and not upon specific statutory authority as is present in the case before this Court.
The case of Whitworth v. Mississippi State Highway Commission, supra, decided that the Mississippi State Highway Commission, under a right-of-way deed purporting to convey the fee, actually acquired only an easement “necessary for a state highway system.” It is highly significant that the Conrt did not define the extent of the servitude of the easement, but said “the estate acquired by the appellee (Highway Commission) is measured by the language, not of the deeds, of the statutes.” (Emphasis and words in parenthesis added). What statutes? Certainly the Court did not mean Section 8023 alone. It must have meant those statute's which “measure” the estate acquired — all of the statutes on the subject. The following statutes are the ones that measure the estate conveyed by Berry to the State Highway Commission:
Section 8023, which defines the width, states that the right-of-way must be “necessary for a state highway system,” or for the purpose of obtaining “road building materials,” or for the promotion of “the safety and convenience of traffic.” Subsection (f) of Section 8038 provides: “(f) To make proper and reasonable rules, regulations and ordinances for the placing, erection, removal or relocation of telephone, telegraph or other poles; sign boards, fences, gas, water, sewerage, oil or other pipe lines, and other obstructions that may in the opinion of the Mississippi highway commission contribute to the hazard upon any of the state highways, or in any way interfere with the ordinary travel, upon such high*287ways or the construction, or reconstruction thereof, and to make reasonable, rules and regulations for the proper control thereof. Any violation of such rules or regulations or non-compliance with such ordinances shall constitute a misdemeanor.”
Chapter 184, Laws of 1936, known as the “Electric Power Association Act,” was enacted for the purpose of encouraging and promoting the fullest possible use of electrical energy; authorizing the organization of associations such as the appellee in this case; authorizing such associations to exercise the right of eminent domain, and subsection 6 of Section 5474, Code of 1942, provides:
“ (6) To use any right of way, easement or other similar property right necessary or convenient in connection with the acquisition, improvement, operation or maintenance of a system, granted by the State or any political subdivision thereof, provided that the governing body of such political subdivision shall consent to such use; and to have and exercise the power of eminent domain in the manner provided by the condemnation laws of this State for acquiring private property for public use, such right to be paramount except as to the property of the State or of any political subdivision thereof. ’ ’
Section 2780, Mississippi Code of 1942 (Chapter 291, Laws of 1922), as amended, provides: “Bight of eminent domain granted to pipe lines: — All companies or associations of persons, incorporated or organized, for the purpose of building or constructing pipe lines and appliances for the conveying and distribution of oil or gas or for the purpose of constructing, maintaining and operating lines for transmitting electricity for lighting, heating and power purposes, are hereby empowered to exercise the right of eminent domain in the manner now provided by law, to build and construct the said pipe lines and appliances along or across highways, waters, railroads, canals, and public lands, above or below *288grounds, but not in a manner to be dangerous to persons or property, nor to interfere with the common use of such roads, waters, railroads, canals and public lands. The board of supervisors of any county through which any such line may pass, shall have the power to regulate, within their respective limits, the manner in which such lines and appliances shall be constructed and maintained on and above the highways and bridges of the county and all such companies or associations shall be responsible in damages for any injuries caused by such construction or use thereof.”
Section 2778, Mississippi Code of 1942, enacted as Chapter 233, Laws of 1926, provides: £ £ Erect and maintain poles, along, on, and across highways: —-All companies or associations of persons incorporated or organized for such purposes are authorized and empowered to erect, place and maintain their posts, wires and conductors along and across any of the public highways, streets or waters and along and across all turnpikes, railroads and canals, and also through any of the public lands; but the same shall be so constructed and placed as not to be dangerous to persons or property; nor interfere with the common use of such roads, streets, or waters; nor with the use of the wires of other wire-using companies; or more than is necessary with the convenience of any landowner.”
All these statutes were in force long before appellant executed the right-of-way deed to the Mississippi State Highway Commission, which deed purported to convey a fee simple title. Appellant has the right to rely on the Whitworth case and to say to the commission: “I give you a deed purporting to convey a fee simple title, but the law provides for the estate to be measured by the language, not of my deed, but of the statutes.” But appellant should not be heard to say further: “But not all of the statutes — only those I took into consideration at the time I signed the deed.”
*289Appellant also contends, and the majority opinion gives some weight thereto, that (1) since appellant did not contemplate the construction of the electric 'power lines on the right-of-way, the servitude was not considered in fixing the purchase price, and (2) the State Highway Commission was not warranted in paying out public funds for the additional easement for use of an electric power association. Neither contention is tenable. The amount paid for the right-of-way, and the damage to the owner, in practical effect, was approximately the same whether a fee or an easement was taken; and the extent of the servitude of the easement would have little or no effect on the purchase price or the damages to the owner. This is a matter of common knowledge and was judicially recognized in Nicholson v. Board of Mississippi Levee Commissioners, 203 Miss. 71, 33 So. 2d 601, and Whitworth v. Mississippi State Highway Commission, supra.
It is my opinion that the appellee had the right to construct and maintain its power lines on the right-of-way in question without additional compensation to the owner of the fee. The owner of the abutting property and the fee under the highway would have a right of action for any unreasonable interference resulting in special or peculiar injury to his property, differing in kind from the inconvenience or undesirability of the existence of such poles and lines. The chancellor found against the appellant, and I think the case should be affirmed.
I am authorized to state that Justices Roberds, Lee and Ethridge concur in this dissent.