dissenting:
The majority has misinterpreted the facts and ignored long-standing principles of constitutional law in its decision awarding the railroad company a fee simple interest in its right of way. The record below indicates that in 1929 the railroad company sought to condemn the appellant’s property solely for the purpose of constructing and operating its railroad. There is no evidence of record that the oil and gas underlying the property was considered as an element of value in the condemnation proceedings. Indeed, it appears that in ascertaining the just compensation for the condemned land the commissioners did not consider the value of the underlying minerals. The majority thus permits the railroad company to develop and reduce to ownership oil and gas for which it has not paid, in direct contravention of our constitutional prohibitions against the taking of property for public use without just compensation. U.S. Const, amend. V; W.Va. Const, art. Ill, § 9.
Moreover, the majority fails to address the question of the unconstitutionality of the statute under which the railroad company proceeded authorizing the automatic taking of a fee estate unless a lesser estate is sought. It is universally recognized that private property can constitutionally be taken by eminent domain only for a public use. 2A Nichols on Eminent Domain § 7.1 (1981). See, e.g., State ex rel. McMillion v. Stahl, 141 W.Va. 233, 89 S.E.2d 693 (1955); Fork Ridge Baptist Cemetery Ass’n v. Reed, 33 W.Va. 262, 10 S.E. 405 (1889); Baltimore & O.R. Co. v. Pittsburgh, W & K.R. Co., 17 W.Va. 812 (1881). See also Handley v. Cook, 162 W.Va. 629, 252 S.E.2d 147 (1979) (McGraw, J., dissenting). It necessarily flows from this principle “that no more property can be taken by eminent domain than the public use requires _” 3 Nichols on Eminent Domain at § 9.2[2], See Annot., 6 A.L.R.3d 297, at §§ 4, 5 (1966). This rule applies both to the amount of property to be acquired and to the nature of the estate or interest acquired in the property. Thus, “[i]f an easement will satisfy the public needs, to take the fee would be unjust to *552the owner, who is entitled to retain whatever the public needs do not require .... ” 3 Nichols on Eminent Domain at § 9.2[2].
While the statute under which the con-demnor was proceeding authorized railroad companies to take a fee interest in condemned property, that statute must be read in light of our constitutional provisions proscribing the deprivation of property without due process of law. U.S. Const. amend. V; W.Va. Const, art. Ill, § 10. To permit a condemnor under color of law to take private property which is unnecessary to a public use is a deprivation of property without due process of law. Thus, “when an easement is all that is required for the public use, it is not competent for the legislature to authorize the taking of the fee .... ” 2A Nichols on Eminent Domain § 7.223[1]. See generally Hark v. Mountain Fork Lumber Co., 127 W.Va. 586, 34 S.E.2d 348 (1945). As this Court stated in Varner v. Martin, 21 W.Va. 534, 549 (1883), with respect to the taking of property for a private use: “Such an act if passed by the Legislature would not in its nature be a law, but would really be an act of robbery; the exercise of a power not conferred on the Legislature.”
Understandably, the majority does not argue that the extraction of oil and gas is a necessary public use of land condemned “for railroad purposes.” The majority chooses instead to base its decision on the doctrine of stare decisis, and a reluctance to change prior interpretations of our condemnation law. I am of the belief that the doctrine of stare decisis cannot be invoked to validate an unconstitutional deprivation of property. I would therefore reverse the decision of the lower court.