(dissenting)—I cannot agree to the conclusion of the majority as above stated.
*471This case was first heard by the department. At that time the judgment was reversed upon the ground that no necessity was shown for another public service corporation to do the same business as an old one was then engaged in. Afterwards a rehearing was granted and the case heard En Banc. The department opinion may be found in State ex rel. South Fork Log Driving Co. v. Superior Court, 94 Wash. 691, 163 Pac. 15, where the principal facts are stated. The record shows conclusively that the Northwest Electric & Water Works has been furnishing water and electricity to the city of South Bend for a number of years. The Willapa Power Company, a new company, seeks to furnish the same service; and in order to do so, seeks to condemn a tract of land, with its riparian rights, now owned by the Northwest Electric & Water Works, which land contains the only available and sufficient water supply tributary to the city of South Bend. This tract of land was purchased by the Northwest Electric & Water Works in anticipation of its future needs for water. Mr. Shepard, president, and Mr. Andrus, vice president and manager of the Northwest Electric & Water Works, each testified that the present supply of water was barely sufficient to meet present needs; that the population of the city was increasing; that, in dry spells, the supply ran short; that the demand for water was increasing; that they intended, within a reasonable time, to utilize the water from this tract of land, and that its use was necessary. (Relators’ Abstract, pp. 113, 142 and 143.)
There was no dispute of these facts and no attempt to contradict them, notwithstanding what is said in the majority opinion concerning them; so that the real and controlling question in the case is, May one public service corporation, seeking to perform the same service as another public service corporation, condemn and *472take over property of the other corporation reasonably necessary for that other to continue in business? In short, may a new public service corporation condemn an old one of the same kind out of business ? The effect of the majority opinion is to answer this question in the affirmative. I am satisfied that this may not be done, and that the department opinion states the rule of .law upon that question.
I therefore dissent.
Fullerton, J., concurs with Mount, J.