dissenting. I dissent from the ruling of the majority of my brethren, to the effect that the condemnee was estopped to prosecute his equitable proceeding for injunction, raising the question of necessity for the taking of the plaintiff’s property for a public purpose, because of his participation in the statutory condemnation proceeding under the Code, Chapter 36-3, by the appointment of an assessor, the introduction of evidence as to the value of the land sought to be condemned, and the filing of an appeal from the award of the assessors. I think that the conclusion reached by the majority is wrong, for the reason that the plaintiff in the present proceeding is not, as *372held by the majority, prosecuting two actions in the court at the same time for the same cause of action against the same party, which is prohibited by Code § 3-601, in that the statutory condemnation proceeding was not instituted and was not prosecuted by the present plaintiff, but by the defendant, the condemnor, and the plaintiff, by participating therein was defending, and not prosecuting, the action. In that proceeding the question of the necessity for the taking of his property could not be raised, but the only question for determination in that case by the assessors, and by the superior court on appeal, is the amount of compensation to be paid for the land taken. Atlanta Terra Cotta Co. v. Georgia Railway and Electric Co., 132 Ga. 537 (64 S. E. 563). The underlying and fundamental principle upon which the right to take the property of any private citizen against his will by the delegated sovereign power of the State of eminent domain is that it is necessary to do so for a public purpose; and the only way in which the question of public necessity can be raised in a condemnation proceeding under the Code, Chapter 36-3, is by an equitable petition for injunction. Harrold v. Central of Georgia Railway Co., 144 Ga. 199 (86 S. E. 552); Piedmont Cotton Mills v. Georgia Railway and Electric Co., 131 Ga. 129, 136 (62 S. E. 52); Hogg v. City of La-Grange, 202 Ga. 767 (44 S. E. 2d, 760); Western and Atlantic Railroad Co. v. Western Union Telegraph Co., 138 Ga. 420 (75 S. E. 471); Savannah River Terminals Co. v. Southern Railway Co., 148 Ga. 180 (3), 186 (96 S. E. 257).
The present case differs from that of Bibb Brick Co. v. Central of Georgia Railway Co., 150 Ga. 65 (102 S. E. 521), cited by the majority as authority for the ruling there made, in that there the condemnee accepted the amount awarded by the assessors as in full payment, and entered no appeal from their award. In the instant case, the condemnee refused to accept the amount awarded by the assessors, but entered and now has pending in the superior court an appeal from that award. He is entitled to have determined the question of necessity for the taking of his property, and can do this only in this .equitable proceeding. He is, therefore, not prosecuting two actions in the court at the same time for the same cause of action, and against the same parties, but is defending the condemnation proceeding, wherein *373the only question involved is one of value, and is prosecuting his equitable proceeding wherein the question of the necessity for the taking is involved — tvo separate and distinct proceedings, neither of which involves the question to be determined in the other.
I am authorized to say that Duckworth, Chief Justice, and Head, Justice, concur in this dissent.