¶1dissenting.
¶2The dissenting opinion delivered on October 18, 1961, is withdrawn, and the following substituted therefor:
¶3I respectfully dissent.
¶4The question involved has never been expressly decided in Texas. The Court here seems to attach some weight to what it deems to be the majority rule. It is of no particular significance as to which is the majority rule, and which the minority rule, *80when the question is an open one in this State. We are not compelled to follow the majority rule which, if followed, will bind the tenant to pay rent on premises after he has been permanently ousted therefrom. Texas should adopt a rule which will be in accord with our Texas decisions on Landlord and Tenant. Where the so-called minority rule is followed, the obligation to pay rent is extinguished pro tanto and the present value of the rent apportioned to the part taken is paid directly to the lessor as in the taking of the whole property. See American Law of Property, Sec. 3.55, p. 291.
¶5In Dyer v. Wightman, 66 Pa. 425, the court placed the ground for the extinguishment of the rent on the theory that equity will not give the award for the value of the rent to the tenant because that would leave the landlord insecure, and hence the equitable thing to do is to give the sum to the landlord and extinguish the tenant’s obligation to pay rent.
¶6Regardless of where equity should lie, it is difficult for me to see why the rule applied on a total taking would not also be applicable to a taking of a part of the premises. By applying the rule to a partial taking, we would have a pro tanto abatement of the rent.
¶7The adoption of this sensible and most equitable rule would not in the least complicate statutory condemnation proceedings in cases where landlord and tenant are involved.
¶8A proceeding for condemnation of private property for public use is a special statutory proceeding. The court sitting in such proceeding has no equitable jurisdiction, and accordingly has no power to reform or revise the Elliott-Joseph lease, nor to determine to what extent the covenant to pay rent shall be affected.
¶9The payment of rentals, of course, is a factor which must be considered in arriving at the fair market value of the lease. See Frankfurt v. Texas Turnpike Authority, 311 S.W. 2d 261. However, the apportionment of the rents is a problem of the law of Landlord and Tenant to be finally adjudicated in separate proceedings in a court of competent jurisdiction.
¶10In 1 Orgel on Valuation Under Eminent Domain, 2d Ed. Sec. 121, p. 522, it is said:
“Where a contrary ruling is not required by the lease or by statute, it would seem to us far more reasonable to release *81the lessee from his obligation to continue the rent payments, or partially to reduce it when only a part of the premises has been taken, leaving the remaining part still inhabitable.”
¶11The rule for which I contend has been adopted in other jurisdictions. However, if it had never been followed in any jurisdiction, I still contend that Texas should refuse to follow the harsh and inequitable rule followed by the so-called majority rule. Many times this Court has, in instances of divided authority, struck out on its own course. Since Texas is to adopt a rule, it would seem that our courts should be inclined to adopt the sensible, simplest, and most equitable rule.
¶12ASSOCIATE JUSTICES GREENHILL and HAMILTON join in this dissent.
¶13Opinion delivered December 20, 1961.