This writ brings up two orders, dated February 16th, 1931, and February 28th, 1931, in a condemnation proceeding instituted by the state highway commission to acquire the fee of lands of prosecutor for highway purposes in the ■construction of route 21 through the city of Newark.

A number of questions are raised, but we are of opinion that it is necessary to deal with only one of them.

We conclude that the ground urged by prosecutor, that the state highway commission is without power to take prosecutor’s lands in fee, must be determined in his favor.

In Frelinghuysen v. State Highway Commission, 107 N. J. L. 218, affirmed February 1st, 1932, it was held that the statute relating to establishing the state highway system does not empower the highway commission to take all the right, title and interest of the owner, but only so much of the right, title and interest of the owner as may be necessary to the public use authorized.

*318In the instant case, the orders under review provide for the taking of the fee of the lands in question. It follows, therefore, that ,so much of the orders in said condemnation proceedings, dated February 16th, 1931, and February 28th, 1931, as empowers the commission to take all the right, title and interest of the prosecutor in the lands therein referred to is set aside, but without costs to either party.