On Motion for Rehearing.
"The taking or injuring of private property for the public benefit is the exercise of a high power, and all the conditions and limitations provided by law, under which it may be done, should be closely followed. Too much caution in this respect cannot be observed to prevent abuse and oppression.” (Emphasis supplied.) Thomas v. City of Cairo, 206 Ga. 336, 337 (57 SE2d 192) (1950).
MARTA, in its motion for a rehearing, alleges that this court’s decision in this case is revolutionary. To the contrary it is not revolutionary but is grounded upon well-settled and long-standing Georgia law.
In the case of Barrett v. State Highway Dept., 211 Ga. 876, 877 (89 SE2d 652) (1973), the court said, "[t]he law is well settled that, when the State gives to a person or corporation the right of eminent domain, it carries with the grant of this power the right to condemn such property as may be reasonably necessary for the purpose for which the property is to be condemned . . .” (Emphasis supplied.) In this case before us, MARTA needs access to its terminal facility located some 120 feet below Peachtree Street. This access is to be gained through an opening in the surface of the ground to be covered by some structure that will be 36 feet in height. The public purpose for which this parcel was condemned was to furnish this access way for passengers to reach the facility some 120 feet below the earth’s surface. There is no logical reason or explanation as to why MARTA needs the fee simple title to air rights above this 36 feet in order to carry out the public purpose for which it was created, that is, to transport people on a public transportation system.
The word "revolutionary” is much more applicable to describe MARTA’s contention that this court has no pow*476er on review to find that the evidence establishes unauthorized and unlawful conduct. This court does find from-the evidence in this case that MARTA has abused its power of eminent domain inasmuch as it has no need of any property (air rights) above the ground other than the 36 feet necessary to erect a cover over the entrance way to the terminal facility some 120 feet below the surface of Peachtree Street. To allow MARTA to condemn something it has no need for is an unlawful taking and an unconstitutional exercise of its power of eminent domain. The power of eminent domain was granted MARTA for the purpose of building a transportation system, not to enter into the real estate business. See Karesh v. City Council of City of Charleston, 247 SE2d 342 (1978).
Motion for rehearing denied.