I concur. The contract to exchange the right of way for tap rights, if in perpetuity, was void but my doubt is as to whether it should not be construed as a contract giving the Town a right of way so long as it permitted the respondents to draw the Town's water from their taps. Under this view, respondents' tap rights would not be in perpetuity but limited to the period during which the city made use of the right of way. The Town's use of the right of way then is treated as currently running compensation for its furnishing of water. But whether the contract be considered unconstitutional and therefore void or one in which the Town furnished water in exchange for the rental value of the right of way subject to termination when the Town desided no longer to furnish the water, makes no difference in result. The Town sought to condemn the right of way and to obtain title and thus to terminate the contract. It had a right to refuse to furnish water under the contract; otherwise, the contract would be to furnish water in perpetuity which under the Genola case would be tantamount to parting with its water rights. Having refused to furnish water for the right, it no longer could claim the right of way and was forced to condemn. The court erred in *Page 124 holding that it was not required to condemn because it already had the right of way in perpetuity. This holding, however, was not assigned as error and therefore cannot be directly reviewed but the decree awarding respondents 300 gallons of water per day in perpetuity was on the supposition that the city had a right of way in perpetuity. Since the supposition was incorrect, such decree was erroneous. The case, therefore, should be returned for proper adjudication on the issue of condemnation. In condemnation the ultimate reversion may be in the condemnees and their heirs if not used for the purpose for which condemned. If so, there seems but little difference in reality between what the Town had under its agreement as to the right of way and the conditional title which it will get by condemnation, but there is much difference in the fact that it is not required to continue to furnish water even though failure to do so precludes it from conscientiously retaining the right of way. By condemnation it serves notice that it will no longer furnish water and that it intends to pay directly for the land over which to transmit water for the Town, rather than pay for the privilege by furnishing water to respondents.