(dissenting) — I think Judge Parker has clearly shown that the act relied on to sustain the majority opinion will not bear the construction put upon it. I will not discuss that feature of the case, but refer to two propositions, one of law and the other of fact or policy as it may be, either of which in my judgment should restrain the court from pronouncing its present judgment to be the law of the land.
It is a settled principle that, if an act granting the power of eminent domain be doubtful, its terms will not be extended or enlarged by construction.
“The right to take private property in any form, without the consent of the owner, is a high prerogative of sovereignty, which no individual or corporation can exercise without an express grant. The power may be delegated, but the delegation must plainly appear. It is accordingly held that *565statutes providing for such a taking under the exercise of the power of eminent domain must be strictly construed. It is a taking in derogation of private rights. It is in hostility to the ordinary control of the citizen over his estate, and statutes authorizing condemnation are not to be extended by inference or implication.” 2 Lewis’ Sutherland Statutory Construction (2d ed.), § 559.
The law does not mean doubt in the mind of one judge or a majority of the court, for we know that they have no doubt; otherwise they would not have pronounced the decision. But, as employed in the canon just referred to, doubt means, to use the language we have so often employed in negligence cases, that the minds of reasonable men differ upon the proposition advanced. Here we have a statute passed forty years ago, and at a time when the problem of irrigation had not developed to such an extent as to demand storage of flood waters. Men led water out of flowing streams and onto their own lands. The irrigation company as we now know it and the storage of flood waters was, as we may assume, never considered by the legislature, for it clearly legislated for existing conditions and not for that which was not foreseen. The old act has stood unimpaired and unamended during all these years, and we may take it as a positive postulate that the legislature never intended to put the sovereign power of the state to control an agency as destructive as dynamite into irresponsible hands. At the same session, and on the same day, an act was passed granting to manufacturing and mining companies the right to make reservoirs. It was left out of the irrigation act, and as I believe purposely, for the-mill dam of a generation ago is as nothing compared with the reservoir' for impounding the flood waters of the winter season as they are at present constructed. The one rarely raised the waters above the banks of the stream. The other spreads it over vast areas. The capacity of the one can be measured in thousands of gallons. The other is measured in millions. As a matter of good sound public policy, this court should not grant by construction a power *566which should never be granted, even by legislatures, without safeguarding in every possible way the rights of the public. The danger of our decision lies in this, that although we grant the power, we can put no restraint upon it. The law is left by this decision in this way: The irrigation company can condemn without let or hindrance and build without restraint or supervision, to the possible peril of life and property below the dam. The building of such reservoirs, because of the great attendant danger, should never be allowed or entertained until the legislature has fixed the method and manner of construction or reserved the right of supervision. The court being divided, we should wait the few months which will intervene, when the matter can be settled by the legislature in such way as it sees fit.
In an article of singular worth, published in the Technical World Magazine for January, 1912, it is shown that, since 1890, 35 solid masonry dams, 41 earth dams, four rock-filled dams, and one steel dam, have gone out from one cause or another; and while the damage is not aggregated, it is said that the damage at the Johnstown flood was $10,000,000, and at the Austin flood, $6,000,000 in money. The floods mentioned cost the lives of more than 2,000 people. The writer says:
“The twenty years between Johnstown and Austin are dotted thick with similar warnings, men, women and children swept away and drowned, property wiped out of existence. At least eighty-one dams of considerable size burst, unleashing ruin, during those twenty years. ... In only four or five states — Rhode Island, Massachusetts, Connecticut and Colorado — has there been even a pretense of protecting people and property against the danger of dams, improperly built or maintained. Almost everywhere greedy or ignorant private interests have been permitted — free from the inspection of state engineers — to pen back great floods behind dams which were certain, sooner or later, to break and let ruin loose upon the countryside. And the excuse has always been that nothing must be done to interfere with the growth of business. But whatever the menace of the dam *567in the past, the time has now come when to delay longer the passage and enforcement of strict and scientific inspection laws will be worse than criminal carelessness. . . . But few structures built by man are so certain as are dams to be subject to abnormal tests by the almost resistless forces of nature. Yearly it is probable that great floods will sweep down the water-sheds and perhaps double the pressure behind the dams which block their way. If the dam holds, the flood water may force its way round the ends of the masonry and sweep away the earth and rubble wings. That is what happened in Wisconsin at the two dams on the Black river, with the result that the frightened people of Black River Falls looked down a few hours later on a swirling river covering the land where had stood their banks and business houses. Imminent death and destruction for thousands of people are penned behind the walls of a thousand dams in the United States alone. Even when — as at Austin — warning is given that the wall is too weak, corporation managers— their own lives not in danger — are too often willing to take a chance with the lives and property of other people.”
For these reasons, then — one, that our minds differ as to the construction of the act, and the other that sound public policy demands that the questions here discussed be settled by the legislative branch of the government — I am impelled to dissent from the views of the majority.