(dissenting) — The Washington Constitution’s prohibition against taking private property for private use is absolute: “Private property shall not be taken for private use . . . Const. art. I, § 16 (amend. 9). Where the condemned property is to be devoted to both a private and a public use, the constitutional prohibition has no less force:
If a private use is combined with a public use in such a way that the two cannot be separated, the right of eminent domain cannot be invoked.
. . . [W]here the purpose of a proposed acquisition is to acquire property and devote only a portion of it to truly public uses, the remainder to be rented or sold for private use, the project does not constitute public use.
In re City of Seattle, 96 Wn.2d 616, 627-28, 638 P.2d 549 (1981) (citations omitted).
*826Therefore, whether one construes these facts to indicate public and private use which cannot be separated, or uses which are wholly separate, the result must be the same: any taking for private use is constitutionally forbidden.
Yet this court’s majority rests its conclusion that this seizure of private property for private use passes constitutional muster upon a claimed judicially created exception for “incidental private use.” Therefore it is the nature and scope of this claimed exception which we must primarily examine.
To summarize, I would hold: (1) the incidental private use exception is inapplicable because “incidental use” is a private use to effect, aid, or accomplish the same object as the principal use, not simply a wholly distinct private use which may be quantitatively smaller and, most importantly, the exception does not permit any additional condemnation of private property to serve the private use; (2) any taking in excess of the air space and vertical support necessary for the overhead exhibit hall facility is unconstitutionally in excess to that which is necessarily condemned to permit the public use; and (3) the contemplated recoupment sale whereby condemned private property is sold by the government to a new private owner for profit illustrates, and proves, that this condemnation is not only for private use, but is unconstitutionally in excess of that which is necessary.
Before proceeding to the legal analysis, however, I pause to notice some facts which are particularly germane to the issues presented.
Facts Pertaining to Private Use, Excess Condemnation on Recoupment Sale
After an extended hearing, the Honorable Sharon S. Armstrong, Chief Civil Judge of the King County Superior Court, entered 41 paragraphs of detailed findings to which none of the parties takes serious exception.
At the outset, the learned trial judge recognized the statutory imperative that an expansion to the convention *827center exhibit hall would not be approved absent a $15 million contribution in public or private funds. See Clerk’s Papers (CP) at 41 (Findings of Fact ¶ 15, of Superior Court “Findings of Fact and Conclusions of Law as to Public Use and Necessity,” dated June 9, 1997) (Findings). Although initial hopes had been entertained that the King County government would front the difference, it soon became apparent that the only possible source of these funds was from private sources and that such funds would not be forthcoming unless property in excess of that which was truly necessary for the convention hall expansion was condemned so as to allow for a private development potential. Thus, the proposed eastward expansion of the convention hall was discarded because it would provide no “surplus” property to induce the $15 million private contribution.
Northward expansion, however, remained a prime candidate since only the air space, about 30 feet from floor to ceiling, would be necessary between four to six stories above the existing surface at a level between elevation 205 and 242 feet. CP at 43 (Findings ¶ 21). Thus the excess space below elevation 205, the “ground parcel,” could be used by a private developer, consistent with foundation columns, for retail, hotel, and parking facilities, in conjunction with a privately owned hotel tower rising above a portion of the exhibit hall roof (purchased, not condemned) in the extreme northwest corner of the project. CP at 43 (Findings ¶ 22).
The north alternative was therefore specifically chosen because it provided this opportunity for private use, at government profit, whereas the east alternative was specifically rejected because it “provided no private co-development opportunities that would produce a net financial contribution to the project.” CP at 44 (Findings ¶ 26).
The brief of the convention center emphasizes at some length the uniquely separate and private nature of the project below elevation 205, quoting James Ellis, Chairman of the WSCTC Board of Directors, that
*828[T]he projects themselves are separate. They will be separately owned, separately managed, separately operated and not enter [sic] connected in an operational sense. But they are joined for purposes of construction for economies yielded to both parties.
Report of Proceedings (RP) (May 13, 1997) at 83. The trial court specifically identified this separate private use:
When the structures are complete, the privately developed space will be separately owned and operated from the Convention Center space, and the hotel space will not be interconnected to the Convention Center Space. The Convention Center and private spaces will be physically separate.
CP at 48 (Findings ¶ 38) (emphasis added).
Of particular importance is Finding 37 wherein it is acknowledged that the condemned fee was not only divisible from the public use servitude but specifically would be resold to a private developer:
There will, however, be floors of hotel support facilities and other hotel use in the northwest block and after construction is completed, the private developer, Hedreen, will receive fee simple title to all surplus property in the northwest block, subject to the Convention Center’s ownership of its Exhibit Hall space and easement or fee interest in the supporting columns, stairwells and utility chases, and subject to the terms and restrictions of the Development Agreement preventing the penetration of the Exhibit Hall.
CP at 47-48 (Findings ¶ 37) (emphasis added).
I therefore posit the determinative facts for our review may be summarized as follows:
(1) The condemned property was specifically selected because of the government’s intention to resell a portion of the seized space to a private entrepreneur for private use;
(2) The space dedicated to private use will, as part of the same transaction, be deeded in fee to the new private user subject to an easement reserved to the convention center for the overhead exhibition hall and support; and
(3) The private use, except for the financial consider*829ation paid by its private owner, does not in any way, shape, or form contribute, relate to, or enhance the public exhibition hall use.
I.
Private Use
Whether the test is stated as public-use or public-purpose, there is one thing about which American courts have always said that they were adamant. Eminent domain cannot be used to transfer property from one private person to another.[4]
A. Absolute Prohibition of State Constitution
The eminent domain provision of the Washington Constitution, Const, art. I, § 16 (amend. 9), presents one of the strongest mandates against public taking for private use of any in the nation.5 Our text expressly prohibits taking property for private use whereas the Fifth Amendment to the United States Constitution disallows same only by inference (“[N]or shall private property be taken for public use *830. . . .”). History demonstrates these words of article I, section 16, were carefully chosen to strengthen our guarantee over rejected language from other state constitutions (similar to that of the Fifth Amendment), affording our residents enhanced constitutional guarantees against injustice and oppression.6
This absolute and mandatory language is only strengthened, not diminished, by the enumeration of certain, but here inapplicable, exceptions “for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes.” The text demonstrates the ratifying public recognized and incorporated these specific exceptions to the otherwise absolute constitutional prohibition as if to say there are no others. Expressio unius est exclusio alterius.7
The context of this constitutional provision includes article I, section 29, which states, “The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise,” as well as section 32, which counsels, “A frequent recurrence to fundamental principles is essential to the security of individual right and the per*831petuity of free government.”8 Such principles must be divined to guide our review if we are to keep the faith of our Fathers.
Moreover within the text of the operative section itself our Framers and Ratifiers expressly rendered the question of public or private use a wholly judicial one (“Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public . . . .” Const. art. I, § 16) (amend. 9) to be independently determined without deference to legislative direction or preference. See Healy Lumber Co. v. Morris, 33 Wash. 490, 500, 74 P. 681 (1903) (unlike all but two others, our constitution mandates the court be “untrammeled by any consideration due to legislative assertion or enactment.”). See also William B. Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 586 (1972) (this clause is responsible for Washington requirement that there be a separate hearing on public use and necessity).
As held in Hogue v. Port of Seattle, 54 Wn.2d 799, 838-39, 341 P.2d 171 (1959), our constitutional prohibition against taking private property for private use is equal in significance to the great constitutional guarantee that just compensation must be paid as a condition precedent to the exercise of the government’s power of eminent domain:
[I]t is the duty of the courts to uphold the rights of private property owners against the inroads of public bodies who seek to acquire it for private purposes which they honestly believe to be essential for the public good.
The people of this state have placed in our constitution *832(Art. I, § 16 (amendment 9)) two restrictions on the power of the state and its municipal subdivisions to acquire private property. Without these two restrictions, the sovereign power to take private property would literally be without limitation. One limitation is that just compensation therefor (as fixed by a jury) must first be paid to the owner, and the second limitation is that a court must determine whether the use for which the property is sought is really a public use. These two restrictions were placed in the constitution for the protection of private property, and each one is equally as important to the property owner as the other. In other words, it is just as important that the proposed use of the property be limited to what the court decides to be a “really public” use as it is that the property owner be given just compensation.
Id. at 838. Certainly it is not our role today to diminish, even by a farthing, that liberty which our Forefathers have bequeathed.
B. Incidental Use Doctrine
While the trial court recognized the contemplated private use is obvious and incontrovertible, it nevertheless concluded this condemnation for combined private and public use is constitutionally permissible because “the volumetric ratio of private use to public use is approximately 20 percent to 80 percent.” Majority at 816. Although this calculation is somewhat problematic since the 80 percent product can be achieved only by counting empty air space over a structure which is two-thirds private and one-third public, the principle enunciated by the trial court, that private property may be condemned for private use so long as not more than 50 percent of the total seizure by area or volume is for private use, finds no principled origin in our constitutional text. Rather in consequence the trial court fashioned a rule permitting private property to be constitutionally seized for private use even when the total seizure exceeds that which is publicly necessary by up to 99 percent. That this is the trial court’s rule there can be no doubt since the trial court was quite emphatic in her view that without inclusion of the air space in the “public use” *833calculation, condemnation would constitutionally fail as a public taking for private use.9
Notwithstanding, the majority of this court opts for an even more extreme proposition: if any layer of air space is necessary for public use, condemnation of everything from Hades below to the heavens above is fair game for condemnation without concern for the intended private use of nearly everything in-between. Majority at 823 (“. . . its footprint spans the entire property to be condemned”). Therefore, from the majority’s perspective, the government may condemn a 50-story office building intending to use only one floor for a legitimate public use, selling all of the remaining confiscated private property to the highest private bidder.
While I think it is correct that previous case law indeed stands for the proposition that condemned property “may also be put to a private use that is merely incidental to that public use,” majority at 817 (emphasis added), before applying this maxim we must necessarily consider the meaning of the term “incidental” as used in those cases, and then test the result against that which the constitutional text forbids. Of course it is ultimately the constitution which we are to protect and expound. Therefore if a branch of judicial precedent should subvert it, which I do not believe this does if properly understood, we had better tear out the tree of precedent by its roots than allow it to infect the remaining orchard with its virulence.
The majority cites Chandler v. City of Seattle, 80 Wash. 154, 141 P. 331 (1914) and City of Tacoma v. Nisqually *834Power Co., 57 Wash. 420, 107 P. 199 (1910), to support its claim of incidental private use. However the rule I would distill from these cases, and every other incidental private use case,10 is that to be “incidental” the private use must usually be in like kind to the public use, or at least dependent upon the public use, and that in no case may more property be condemned to support the public and private use than would necessarily be condemned to permit the public use even if the private use were entirely eliminated.
Chandler concerned the validity of bonds for construction of a steam plant and was, therefore, not an eminent domain case at all. It seems the plant produced electricity in sufficient quantity to supply and satisfy not only the public demand but also yielded a surplus of power during certain hours of minimal public demand. The surplus was therefore available for private use as an “incidental” byproduct of the publicly operated facility. This incidental power was an intrinsic and unavoidable consequence of steam plant operation, unlike the situation we have here *835where the very selection of property to be condemned was structured to provide for a separate and distinct private use, with recoupment sale on top of that. Relying upon Nisqually, by analogy, the rationale advanced in Chandler explains the distinction between an “incidental” use which will support condemnation and a nonincidental use which will not:
If, in the meantime, it permits a small mechanic to run his lathe or sharpen his tools, such a use being so insignificant and so small as compared with the necessities that must be supplied, no court would hold that such use was such a private use as to prevent the city from maintaining these proceedings. A private use incidentally included will not defeat the right to condemn for public use so long as the public use is maintained.
Chandler, 80 Wash, at 159 (quoting Nisqually, 57 Wash, at 428). Chandler then articulated the “different rule” which applies to other situations:
In that case, the incidental use was smaller than in the case at bar, but the difference is one of degree, not of principle. Where there is a commingling of two objects to the extent that both are principal objects, a different rule applies.
Chandler, 80 Wash. at 159. Here a “different rule” does apply because objectively (as well as subjectively) the private parking use is a principal object, although arguably not the only object or even the predominate one. As set forth in Chandler, just because “the incidental use was smaller” is of no account as the true distinction is of principle, not degree. I would thus agree with the thrust of Justice Robert Utter’s observation that “incidental” is not a “quantum reference” but rather that which is “incidental to the overarching public purpose.” In re City of Seattle, 96 Wn.2d 616, 643-44, 638 P.2d 549 (1981) (Utter, J., dissenting).
Similarly, the private use at issue here is not “incidental” to the convention hall use in the sense that the private use is in any way ancillary to, the product of, or otherwise related to the public use of the exhibit hall facility above it. If we call it “incidental,” we call it that only because of its *836physical proximity to the public use and its alleged relative quantum. But that is a difference in degree, not kind, and such a definition of “incidental” would authorize what our constitution prohibits: condemnation of private property for private use. Moreover, here the “incidental” private use is used to justify condemnation of more property than is truly necessary for merely the exhibition hall use, a justification which even the majority claims to reject in theory, majority at 813-14 (“the State seeks to condemn no more property than would be necessary to accomplish the purely public component of the project”), but, as will be seen, embraces in practice.
II.
Excess Condemnation
“Excess condemnation is the acquisition by the government through eminent domain of more property than is directly necessary for a public improvement.” 2A Julius L. Sackman, Nichols on Eminent Domain § 7.06[7][a], at 7-169 (3d rev. ed. 1998) (“Excess Condemnation”).
A. Public Use Doctrine
Our constitution prohibits excess condemnation of more property than is necessary for the proposed public use even if no private use is contemplated. City of Pullman v. Glover, 73 Wn.2d 592, 439 P.2d 975 (1968); Eastvold v. Superior Court, 48 Wn.2d 417, 294 P.2d 418 (1956); 3 Julius L. Sackman, Nichols on Eminent Domain § 9.03, at 9-10 (3d rev. ed. 1998) (“Extent of Interest Acquired, [1]—Reasonable Necessity Rule”). This required nexus to necessity is known as the public use doctrine. Stoebuck, Theory of Eminent Domain, supra, at 589. Accordingly, the power of eminent domain is strictly construed against the government, 3 Nichols § 9.03, supra, at 9-17, 9-18, to protect against its abuse.
The majority also acknowledges the rule that “[f]or a proposed condemnation to be lawful, the State must prove that . . . property appropriated is necessary for that [pub*837lic] purpose,” majority at 817, as well it must. Spokane Valley Land & Water Co. v. Arthur D. Jones & Co., 53 Wash. 37, 48, 101 P. 515 (1909) (“It is fundamental that the condemning party cannot take more than his reasonable necessities require.”). See also City of Tacoma v. Humble Oil & Ref. Co., 57 Wn.2d 257, 260, 356 P.2d 586 (1960) (stating “universal rule that the condemner may take no greater interest than is reasonably necessary for the contemplated public use or necessity.”) (citations omitted).
B. Necessity Is Measured by Narrowest Estate To Permit Public Use
It follows from the reasonable necessity rule (i.e., that the condemnor may take only that estate reasonably necessary to accomplish the purpose for which the property is to be taken) that only an easement or a qualified fee is ordinarily taken, except if the authorizing statute provides that a fee simple shall be taken, or if a fee simple is necessary for the purposes for which the land is taken. Therefore, if the statute is silent regarding the estate to be taken, only an easement may be acquired or, if necessary, a base or qualified fee.[11]
3 Nichols § 9.03[3][a], supra, at 9-20, 9-21.
“The estate or interest which is acquired by eminent domain when it is not necessary to condemn the fee is usually called an easement or servitude. . . . [S]uch an estate or interest exists, and has existed at least as long as private easements have existed.” Id. at 9-23.
So too it is clearly the rule in this jurisdiction as well that the “necessity” of the taking must be defined by the narrowest estate in land which will accomplish the public use; whereas condemnation of an easement or other servitude, not a fee, is the norm.
“[I]t is well settled that when land is taken for the public use, unless the fee is necessary for the purposes for which the land is taken, as for example when land is taken for a schoolhouse *838or the statute expressly provides that the fee shall be taken, the public acquires only an easement.”
City of Seattle v. Faussett, 123 Wash. 613, 618, 212 P. 1085 (1923) (quoting 10 R.C.L. 88). See also City of Pullman v. Glover, 73 Wn.2d 592, 595, 439 P.2d 975 (1968) (“In fact, the extent of the taking may be no greater than is reasonably necessary for the stated public purpose.”); William B. Stoebuck, 17 Washington Practice, Real Estate: Property Law § 9.10, at 558 (1995); 3 Nichols § 9.03[3][a], supra, at 9-20.
Just as a railroad may not condemn a right-of-way in fee, but only as an easement to be extinguished upon abandonment, Neitzel v. Spokane Int’l Ry., 65 Wash. 100, 117 P. 864 (1911), the “necessary” estate to be condemned here is at the fourth-floor level, and arguably above, plus only that space “necessary” for foundation supports. The surplus or excess ground parcel—that which is actually to be sold in fee to the private party—is in no sense “necessary” for this public use, save and except a possible temporary easement for construction purposes. That condemnation of an estate less than a fee would reasonably suffice to accommodate the exhibition hall use is illustrated by the very facts of this case which admit the simultaneous divestiture of the underlying fee, subject to a government servitude coincident with its sale to a new private purchaser.
C. Only Servitude, Not Fee, Is Necessarily Taken
A servitude which would allow the construction and placement of the exhibition hall at the fourth floor level is readily capable of independent condemnation in an eminent domain proceeding. See 2 Julius L. Sackman, Nichols on Eminent Domain § 5.04[5][a][i] (3d rev. ed. 1998), at 5-298 (“Acquisition of Airspace Development Rights”); Stoebuck, 17 Wash. Prac. § 9.14, supra, at 571 (“Property—Rights Upon Land of Another (Servitudes)”); Robert R. Wright, The Law of Airspace (1968); Final Draft of Model Airspace Act, 7 Real Prop., Prob. & Tr. J. 353 (1972) (hereinafter “Model Act”); Pearson v. Matheson, 102 S.C. 377, 86 S.E. 1063 (1915).
*839The facts of this case present a prototypical example of excess condemnation where the governmental entity seeks to take more property than the proposed project requires. See Stoebuck, 17 Wash. Prac. § 9.14, supra, at 589. Such is obviously true given the proposed public project which by its very nature defines its own “necessities.”
What is required is “reasonable” necessity .... The short answer to the question is deceptively simple: if the only justification for an eminent domain taking, the only public use or purpose the governmental entity identifies, is a certain project, then of course any land beyond what the project requires will not be taken for even an alleged public use. If we agree that 20 acres and no more are needed for a public park, then of course one more acre or one more square foot are excess.
Stoebuck, 17 Wash. Prac. § 9.20, supra, at 590.
While the maxim “cujus est solum ejus debet esse usque ad coelum” (whoever has the land possesses all the space upwards to an indefinite extent) is of ancient lineage,12 early English precedent recognized a separate title in the estate of an upper room or upper stories in houses or buildings. Such was first memorialized in connection with the privileges accorded legal scholars resident at the Inns of Court. See Stuart S. Ball, Division Into Horizontal Strata of the Landspace Above the Surface, 39 Yale L. J. 616, 620 (1930).
The growth of the Temple societies necessitated more chambers and when the societies were unable to finance this building program during the reign of Elizabeth I, the various fellows of the Temples built upon designated sites, with the chamber so erected being granted to them for life with the power in the life tenant of assigning or devising these chambers to any other fellow or fellows who would have a similar life tenancy and power of disposition.
*840Wright, supra, at 68-69. Accordingly Lord Coke recognized, “[A] man may have an inheritance in an upper chamber, though the lower buildings and soile be in another, and seeing it is an inheritance corporeall it shall passe by livery.” Sir Edward Coke, A Commentary Upon Littleton, supra, at 69 (citing 48b (1628)). See also Model Act at 360.
Such division of property into layers of horizontal estates found favor in American jurisprudence since the outset, Model Act at 363, where it has been recognized, for example, that “[t]he right of an owner to carve out of his property as many estates or interests (perpendicular or horizontal, perpetual or limited) as it may be able to sustain cannot be open to doubt . . . .” R.M. Cobban Realty Co. v. Donlan, 51 Mont. 58, 149 P. 484, 487 (1915). See also, e.g., Cheape v. Town of Chapel Hill, 320 N.C. 549, 359 S.E.2d 792, 800 (1987) (“[T]hey argue . . . the holder of a fee simple may not divide his fee horizontally, . . . [but] absent some specific restraint, the holder of a fee simple may divide his fee in any manner he or she chooses.”); cf. Model Act at 363. Our jurisdiction has also long recognized the validity of an estate in property described by a space in the air. See, e.g., Taft v. Washington Mut. Sav. Bank, 127 Wash. 503, 221 P. 604 (1923) (city may vacate part of street easement suspended at an altitude above the street itself).
D. Air Space May Be Taken in Eminent Domain
Since air space can be transferred, it can be taken in eminent domain. Model Act at 365, 366; cf. Stoebuck, Theory of Eminent Domain, supra, at 606 (“The conclusion is that ‘property’ in eminent domain means every species of interest in land and things of a kind that an owner might transfer to another private person.”). See also Model Act at 365; 2 Nichols § 5.04[5][a], supra, at 5-298, and 3 Nichols § 11.02[2], supra, at 11-30. Some eminent domain statutes *841expressly reference taking air space as well.13 Moreover an air space estate is even fair game for an action in inverse condemnation. See, e.g., Hillsborough County Aviation Auth. v. Benitez, 200 So. 2d 194, 199 (Fla. App. 1967).
Applying the aforementioned principles to the case at bar, the conclusion must follow that all that was truly necessary for the government to condemn was a servitude for the air space over the subject property in conjunction with that easement necessary for foundation supports and temporary construction activities. However, the actual condemnation was greatly in excess of that. Such resulted in what the trial court found to be a “surplus” ground estate which the government would resell to a private entrepreneur for recoupment of a portion of its investment. Such our constitution plainly prohibits as well.
III.
Recoupment
Seizure of private property for recoupment sale represents the worst of all possible eminent domain worlds since (1) it delivers condemned property to private use and (2) necessarily represents a seizure of property which is excess to legitimate public use.
A. Recoupment Defined
As found by the trial court, the unnecessary or “surplus” portion of the property to be condemned is, as part of the same transaction, to be resold to a private entrepreneur for his private use subject only to an easement servitude for the aerial estate reserved in the government. In the parlance of eminent domain jurisprudence such is normally referenced as a “recoupment” sale, and universally frowned upon as an unconstitutional condemnation in excess of that which is necessary for public use (except in those situations where peculiar provisions of a state constitution *842expressly authorize it). “Thus, the basis of recoupment theory is that the government may finance public improvements by condemning more land than is needed and then sell the surplus at a price enhanced by the improvement. The aim here is to recoup the cost of the public project.” 2A Nichols § 7.06[7][d], supra, at 7-184.
B. Taking for Recoupment Violates State Constitution
The leading recoupment case is City of Cincinnati v. Vester, 33 F.2d 242, 68 A.L.R. 831 (6th Cir. 1929), aff’d, 281 U.S. 439, 50 S. Ct. 360, 74 L. Ed. 950 (1930). Cincinnati there sought to condemn land in addition to that necessary to widen a street. The City claimed the additional properties condemned were mere remnants, or were alternatively necessary to beautify the improvement. But the court rejected these arguments, finding the excess taking was a recoupment, not a public use, and thus an unconstitutional taking of more private property than that necessary for the public use. See also 2A Nichols § 7.06[7][d], supra, at 7-186. Accord In re Opinion of the Justices, 204 Mass. 607, 91 N.E. 405 (1910) (eminent domain could not be used for development of commercial and industrial center because the motive for excess taking was profit).
So too a New York State Commission report published in 1972 reiterated the nearly universal view that courts have taken a “dim view of control of private property by the government for the sole purpose of making a profit by resale . . . [and] not only deem it highly improper but also question the constitutionality of the state using the power of eminent domain to take for a future speculative use.” 2A Nichols, § 706[7][d], supra, at 7-186 (quoting Report, New York State Commission on Eminent Domain 46, 47 (1972)). Accord E.L. Strobin, Annotation, Right to Condemn Property in Excess of Needs for a Particular Public Purpose, 6 A.L.R.3d § 6[b], at 311 (In general, American courts have viewed recoupment schemes with disfavor.); Robert H. Freilich & Stephen E Chinn, Transportation Corridors: Shaping and Financing Urbanization Through Integration of Eminent Domain, Zoning and Growth Management *843Techniques, 55 UMKC L. Rev. 153, 205 (1987) (“The exercise of excess condemnation solely for recoupment purposes has consistently met with judicial disapproval.”).
Only six state constitutions14 authorize the condemnation of land in excess of that actually needed for public use, and Washington is not one of them.
I therefore submit seizure of private property in our jurisdiction for recoupment sale insults our Declaration of Rights and subverts our enhanced constitutional guarantee *844against “. . . great injustice, and often the most serious oppression.”15
IV
Consequences
The majority opinion yields two consequences, one anticipated and one probably not.
The anticipated one is that the absolute state constitutional prohibition against taking private property for private use is judicially repealed. This is necessarily the case because of the majority claim that a public use for one level of floor space, or floor plan, justifies public seizure of everything above it and below it for private use, even recoupment sale.
The second consequence, probably unintended, is that where the government desires to condemn only a horizontal servitude at some elevation so as to restrict the level of public compensation to the private property owner to that which is only “necessarily” acquired (such as a height restriction in an historical district, for example),16 the private property owner will now be able to claim that the public condemnation, and hence compensation, is inappropriately limited to less than the entire fee estate consistent with the resurrected maxim cujus est solum, ejus est usque ad coelum. I can see no principle inherent in today’s opinion, however, which would defeat such an argument because if it is necessary to condemn the entire fee to use but a condominiumized aerial estate because that result is pleasing to the government, there is no reason the same result would not follow simply because it pleases the private landowner.
For these reasons I do dissent, would reverse the order of condemnation because it takes private property for private use and, additionally, seizes private property in excess of that which is necessary for public use.
*845Madsen, J., concurs with Sanders, J.
William B. Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 595 (1972) (citing VanHorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 1 L. Ed. 391 (1795) and Coster v. Tide Water Co., 18 N.J. Eq. 54 (1866)). “Take that simple case: government pays for and condemns A’s land and immediately gives it to B. No one will seriously contend that the transfer was not from A to B, just because the land paused momentarily in the government.” Stoebuck, Theory of Eminent Domain, supra, at 598.
§ 16 EMINENT DOMAIN. Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in courts of record, in the manner prescribed by law. Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public: Provided, That the taking of private property by the state for land reclamation and settlement purposes is hereby declared to be for public use.
Const. art. I, § 16 (amend. 9).
W. Lair Hill published a proposed constitution for Washington in The Oregonian on July 4, 1889, which served as the working draft for the delegates to the 1889 Constitutional Convention. Brian Snure, A Frequent Recurrence to Fundamental Principles: Individual Rights, Free Government, and the Washington State Constitution, 67 Wash. L. Rev. 669, 674 n.38 (1992). The notes of the Constitutional Convention contain a tribute to Hill and reflect the tremendous impact of his draft upon the convention delegates. See Lebbeus J. Knapp, The Origin of the Constitution of the State of Washington, 4 Wash. Hist. Q. 227, at 253 (1913). The language of the draft, very similar to that ultimately proposed and ratified, was explained in Hill’s commentary:
Most of the constitutions, if not all now in force, prohibit the taking of private property for public use without compensation; but experience has demonstrated that such a general provision is entirely inadequate to prevent great injustice, and often the most serious oppression.
W Lair Hill, Washington, A Constitution Adapted to the Coming State 8 (1889).
“[T]he expression of one thing is the exclusion of another.” Black’s Law Dictionary 581 (6th ed. 1990).
If the aforementioned were not enough, article I, section 1, administers the coup de grace as that provision provides that “governments . . . are established to protect and maintain individual rights”; whereas the power of eminent domain, classically considered government’s “despotic power,” (Roger Pilon, Can American Asset Forfeiture Law Be Justified?, 39 N.Y.L. Sch. L. Rev. 311, 320 (1994); Stoebuck, Theory of Eminent Domain, supra, at 585-86) was expressly and overtly limited by the text of article I, section 16.
I wish to be clear about one condition for my finding of public use. It is that the air space over all these parcels the petitioner seeks to condemn will not be privately used. If any of the air space is privately used, the private use would completely change the calculus of the use and it would make the private use dominate rather than incidental. This means that the purpose would still be a public one, but the use would be predominately private. If the petitioner condemns the Sansei property, for example, it cannot co-develop the air space with a private party or dedicate it to a private use.
CP at 30 (King County Superior Court Oral Dec. (May 16, 1997)).
State ex rel. Harlan v. Centralia-Chehalis Elec. Ry. & Power Co., 42 Wash. 632, 634, 85 P. 344 (1906) (electric railway incorporated for both public and private uses may condemn land for purely public ones; however, “where the two are not so combined as to he inseparable, the good may be separated from the bad, and the right [of eminent domain may be] exercised for the uses that are public.”); State ex rel. Harris v. Superior Court, 42 Wash. 660, 665-66, 85 P. 666 (1906) (may not condemn land for purpose of generating electricity for both public and private use); State ex rel. Dominick v. Superior Court, 52 Wash. 196, 202, 100 P. 317 (1909) (sale of portion of electric power to third party not sufficient reason to deny power of eminent domain, where power sold will be devoted to public use); State ex rel. Lyle Light, Power & Water Co. v. Superior Court, 70 Wash. 486, 491, 127 P. 104 (1912) (Condemnation statute authorizing sale of excess power is valid only when such power has been generated in good faith for public use hut not needed therefore and would otherwise go to waste.); State ex rel. Weyerhaeuser Timber Co. v. Superior Court, 71 Wash. 84, 90, 127 P. 591 (1912) (Land may be condemned for power generation when no power will be used for nonpublic purpose except in such small, insignificant, and incidental amount as to not defeat public character of the use); State ex rel. York v. Board of Comm’rs, 28 Wn.2d 891, 904, 184 P.2d 577, 172 A.L.R. 1001 (1947) (poles and wires for carrying electricity lining a highway are an excepted incidental use of the highway and abutting property owners have no right to additional compensation); Winkenwerder v. City of Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958) (city ordinance authorizing leasing of advertising space on city parking meters does not offend constitution); Northwest Supermarkets, Inc. v. Crabtree, 54 Wn.2d 181, 186, 338 P.2d 733 (1959) (dedication of a street to public use includes easement sewer rights incidental to the use of the street).
The statute which serves as the basis for this convention hall condemnation does not dictate that a fee estate be condemned. See ROW 67.40.020(2).
The Latin maxim is traced to Accursius of Bologna who lived in the late 12th and early 13th centuries, although it has been suggested that the maxim “entered English law through the usage and influence of the Jews who came to England with the Norman Conquest in 1066.” Robert R. Wright, The Law of Airspace 14 n.10, 15 (1968).
See, e.g., RCW 8.25.073 (costs to condemnee for taking “air space corridor”); RCW 47.52.050(2) (government may condemn “air space corridor” above or below highway); RCW 47.12.120 (department may lease air space).
Massachusetts, Missouri, New York, Ohio, Rhode Island, and Wisconsin, and three of these six—Massachusetts, New York, and Rhode Island—require that an excess condemnation be specifically approved as such by the legislative body.
Massachusetts Const. pt. 1, art. 10:
“The legislature may by special acts for the purpose of laying out, widening or relocating highways or streets authorize the taking in fee by the commonwealth, or by a county, city or town, of more land and property than are needed for the actual construction of such highway or street: provided, however, that the land and property authorized to be taken are specified in the act and are no more in extent than would be sufficient for suitable building lots on both sides of such highway or street, and after so much of the land or property has been appropriated for such highway or street as is needed therefor, may authorize the sale of the remainder for value with or without suitable restrictions.”
Missouri Const. art. 1, § 27: “Acquisition of excess property by eminent domain—disposition under restrictions.
“That in such manner and under such limitations as may be provided by law, the state, or any county or city may acquire by eminent domain such property, or rights in property, in excess of that actually to be occupied by the public improvement or used in connection therewith, as may be reasonably necessary to effectuate the purposes intended, and may be vested with the fee simple title thereto, or the control of the use thereof, and may sell such excess property with such restrictions as shall be appropriate to preserve the improvements made.”
New York Const. art. 18, § 8: The government “may be empowered by the legislature to take property necessary for any such purpose but an excess of that required for public use after such purpose shall have been accomplished.”
Ohio Const. art. 18, § 10: The government “may in furtherance of such public use appropriate or acquire an excess over that actually to be occupied by the improvement, and may sell such excess with such restrictions as shall be appropriate to preserve the improvement made.”
Rhode Island Const. art. VI, § 19: The government may take in fee, “more land and property than is needed for actual construction in the establishing . . . public highways . . . [a]fter so much of the land and property has been appropriated for such public highway ... as is needed therefor, the remainder may be held ... or may be sold or leased for value . . . and in case of any such sale or lease, the person or persons from whom such remainder was taken shall have the first right to purchase or lease the same . . . .”
Wisconsin Const. art. XI, § 3a: The government “may convey such real estate thus acquired and not necessary for such improvements . . . so as to protect such public works and improvements.”
See note six, supra.
I assume for the purpose of this example that such is an act of eminent domain rather than an exercise of the police power.