(specially concurring).
The 1903 Statutes (Article 9, Chapter 17, Oklahoma Territory Statutes, 1893), in effect at the time the condemnation proceeding was had provided that every railroad corporation in the Territory was authorized to construct, operate and maintain a railroad and had power:
“To acquire under the provisions of this article or by purchase all such real estate and other property as may be necessary for the construction, maintenance and operation of its railroad, * * * »
The supplemental opinion promulgated in Jones v. Oklahoma City, 192 Okl. 470, 137 P.2d 233, 238, 155 A.L.R. 375, stated:
“The law in effect at the time the property was condemned authorized the railroad to acquire a full fee simple *557title. We find nothing in the condemnation proceedings indicating an intention on the part of the condemner to take any lesser estate in the property condemned, and we therefore conclude that the parties intended to take such title as they were authorized and empowered to take under the applicable statute. We therefore hold that the title taken was a full fee simple title.”
It is apparent the Court did not hold that a railroad company instituting condemnation proceedings under the 1893 Act invariably acquired a fee-simple title but could acquire a lesser estate. However, it would seem the Court held if there is nothing in the condemnation proceedings indicating an intention on the part of the condemner to take any lesser estate than a fee-simple title, the condemner took all it was authorized and empowered to take, that is, a full fee-simple title.
In my opinion, the rule announced in the Jones case is in conflict with the rule in Missouri, K. & T. Ry. Co. v. Miley, Okl., 263 P.2d 415, 416, which construed the same condemnation statutory provision, wherein we held:
“In order for a fee simple title to be acquired under a statute conferring the power of eminent domain which does not require that such a title be taken, the condemnation proceeding must clearly show an intention to acquire such a title and that such a title was in fact acquired under the condemnation decree.”
This case cited with approval the rule promulgated in Martin v. City of Bethany, 199 Okl. 57, 182 P.2d 517.
In the Jones case if the condemner was authorized to acquire a fee-simple title, such title was acquired unless an intention to acquire a lesser estate was indicated. In the Missouri, K. & T. Ry. Co. case, if the condemner was authorized but not required to acquire a fee-simple title, the condemnation proceedings must clearly show an intention to acquire a fee-simple title. Therefore, I am of the opinion the Missouri, K. & T. Ry. Co. case overruled by implication the Jones case, and the present rule is that the condemnation proceedings must clearly show an intention to acquire a fee-simple title if such title is to be acquired.
There is nothing in the 1893 Act which requires a railroad company to acquire a fee-simple title although it authorizes a fee-simple title to be taken. Since the condemnation proceedings in the instant case, and as set forth in the majority opinion, do not clearly show an intention to acquire a fee-simple title, in my opinion the judgment should be affirmed.
I therefore concur specially in the opinion promulgated by a majority of my associates.
I am authorized to state WILLIAMS, V. C. J., and JACKSON and BERRY, JJ„ concur in the views herein expressed.