Dissenting. — I am unable to concur in the conclusion reached by the majority of the court. I am of the opinion that under the law and the facts the decision of the trial court ought to be affirmed and not modified in any respect. The findings of fact made by the trial court are fully supported by the evidence.
The majority opinion proceeds upon the theory that a mining claim is already devoted to a public use, "regardless of whether the owner is working or using it or not. The majority opinion states: “But it must be remembered that the tract here in controversy is now held by appellant for those purposes and the constitution makes no reference to the taking of property held for, or devoted to, a public use for the purpose of applying it to the same or any other use. ’ ’
The record clearly shows, as the trial court found, that said land was not devoted to a public use. It was not being used by the owner for any purpose. The authorities cited by the appellant do not support the proposition that if property is held for a “prospective” public use, even in good faith, although not applied to such use, it cannot be taken under the right of eminent domain.
In State ex rel. Harbor Boom Co. v. Superior Court, 65 Wash. 129, 117 Pac. 755, the court there quotes from the decision of Samish River Boom Co. v. Union Boom Co., 32 Wash. 586, 73 Pac. 670, as follows: “There can be no doubt that property held by a corporation simply as a proprietor may be taken for a public use by another corporation having the right of eminent domain. ’ ’ Simply because the appellant company owned the land sought to be condemned as a mining claim and held it for a prospective public use, does not protect it from being condemned for a public use upon proper application.
(June 30, 1917.)Counsel for appellant do not contend that their client wants the property sought to be condemned at the present time, but that it may need it at some future time for the proper development of its mine. It is well settled that the mere possibility that land sought to be taken may at some future time become necessary in the operations of the appellant company does not exempt it from condemnation. (See 15 Cyc., p. 614, and authorities there cited.)
It was held in the condemnation case of the Colorado Eastern R. Co. v. Union Pac. R. Co., 41 Fed. 293, that both on reason and authority a mere prospective use of the defendant should yield to the more immediate necessities of the petitioner in that ease. (See 2 Lewis on Eminent Domain, 3d ed., p. 754.)
Property of a gwsi-public corporation not in use and not necessary for the exercise of its public franchises or discharge of its public duties may be taken under the general power to condemn property the same as though it belonged to a private individual. (2 Lewis on Eminent Domain, 3d ed., p. 799.)
The property sought to be condemned in this action is not being used by the defendant for any purpose whatever, and the mere prospective use of the defendant corporation, should be compelled to yield to the more immediate necessities of the plaintiff in this case.
The judgment of the district court ought to be affirmed.