dissenting.
As T see the merits of this case, the affirmance of that part of the lower court’s decree denying an injunction to *567prevent defendant from overflowing the lands of plaintiffs deprives them of constitutional rights and leaves portions of their real estate in control of a trespasser. Entertaining this view, T am compelled to dissent. In giving the reasons by which I am guided, I prefer to state in my own way what I find in the record and the questions presented for determination.
The relief sought by plaintiffs is a perpetual injunction to prevent the maintaining of a dam across Wahoo creek near Ashland. They are upper riparian proprietors whose lands are damaged by overflowing water. Defendant is a corporation. It maintains the dam and uses the waterpower of the stream to generate electricity for lighting purposes in the city of Ashland, Nebraska, and in Pacific Junction, Iowa. The trial court dismissed the case after a trial on the merits, and plaintiffs appealed to this court for the equitable, relief denied below.
One of the grounds urged by plaintiffs for an injunction may be stated in this form: Defendant never had any right to maintain the dam except for the purpose of operating a grist-mill; that right has been lost by abandonment or nonuser, and defendant is unlawfully overflowing the lands of plaintiffs for the purpose of running an electric light plant. On the other hand, defendant, through an easement of flowage acquired by condemnation, asserts the right to use the water-power to propel the machinery installed in its power-house. In determining the merits of these contentions, the privilege under which defendant assumes to act must be traced to its source. By a judgment rendered May 26, 1874, in ad quod damnum proceedings in the district court for Saunders county, Oscar M. Carter was authorized to construct and maintain a dam on the present site, and he promptly exercised the right thus granted. It is stipulated by the parties that defendant, through mesne conveyances, succeeded to the rights of Carter. On the face of his petition in the condemnation proceeding, the enterprise originally undertaken, in addition to the construction and maintenance of the dam, was *568the operation of a “grist-mill.” In performing their duties the jury, selected under the writ of ad quod damnum, among other things, found: “Said ‘flouring-mill’ erected by the plaintiff will be of public utility.” And it was adjudged by the court: “That the plaintiff be and is hereby authorized to build and continue his said mill and mill-dam as prayed in his said petition.” On the right thus acquired defendant attempted to justify the overflowing of plaintiffs’ lands to generate' electricity for lighting purposes alone. Is that position tenable? A finding by a jury that the mill will be of public utility is by statute made an essential paid of the proceeding to condemn lands under the act of 1873. The finding of the jury was limited to the public utility of a flouring-mill, and the decree of the court in the ad quod damnum proceeding went no further. Is defendant now lawfully exercising the original easement of flowage? Since 1896 no flour has been manufactured, and one of defendant’s officers admitted on the witness stand that the establishment could not during that period be considered a “flouring-mill.” The original building was old and dilapidated in 1904. During the fall of that year and the ensuing year it was torn down and the flouring machinery removed. The old structure was replaced by a power-house in which electrical machinery for a lighting plant was installed.- The flouring machinery was nearly all sold and there was no attempt to replace it. A corn-burr, however, was retained, and there is convincing proof that defendant intended to use it for the purpose of preserving the original easement of flowage, instead of operating a grist-mill in good faith. The remaining operations of the grist-mill, so far as disclosed, consisted of grinding a sack of grain for one customer, five or ten bushels for another, and a car-load for the owner of the mill. The plant was destroyed by fire May 8, 1907, and since that date no grain of any kind has been ground, nor has defendant installed any machinery for that purpose. The electric power-house, however, was promptly restored and equipped for the utiliza*569tion of both, steam and water-power. The truth of the record is that electric lighting is the soul of defendant’s enterprise. To that business it has devoted its capital and energy. Neglect, nonuser and abandonment of the milling enterprise, for which alone the right of flowage was established, are shown with equal certainty. It abandoned its grist-mill and lost the incidental easement of flowage.
It is settled law in this state that the condemnation did not vest in Carter or in his grantee the right of flow-age in perpetuity. What he procured was the mere privilege of exercising his easement during its existence. Gross v. Jones, 85 Neb. 77. The original easement of flowage for grist-mill purposes, therefore, cannot be successfully interposed as a defense to the action of plaintiffs to enjoin defendant from overflowing their lands for the sole purpose of utilizing the water-power for an electric light plant. After abandonment of the particular use for which a mere easement in land is established, it cannot be lawfuly devoted to a different purpose without payment of additional compensation or recondemnation. Heard v. City of Brooklyn, 60 N. Y. 242; Campbell v. City of Kansas, 102 Mo. 326; Pittsburgh & L. E. R. Co. v. Bruce, 102 Pa. St. 23. Having lost the original easement by abandonment and nonuser, having made no effort to condemn the lands of plaintiffs for the new and different purpose of obtaining water-power to generate electricity, and having failed to pay for, or otherwise acquire, an additional right of servitude, defendant is a trespasser, and should be enjoined as such.
The deduction I make from the facts and the law cannot be avoided by merely pointing to the milldam act of 1873 and asserting that its title is broad enough to include legislation relating to the procuring of easements of flowage for the purpose of generating electricity by waterpower, that the purpose named is a public one, and that the act authorizes such easements. If the title is as broad as the description of the majority, and if the act contains *570provisions for the condemnation of land for an easement of flowage for the purpose of generating electricity by-water-power, defendant is still a trespasser for the following reasons: It abandoned the mill and lost its incidental right of flowage. It did not in a new ad quod damnum proceeding under the act of 1873, or in any other manner, acquire the right to use plaintiffs’ lands for electric lighting purposes. It did not pay for such different and additional use. No jury ever found, as required by the milldam act, that the new enterprise is a public utility. No court ever so held in an ad quod damnum proceeding. The original judgment rendered in 1874 did not extend to the new enterprise. Damages therefor were never estimated or paid. The lighting of cities by electricity was unknown in 1873, when the milldam act was passed. An easement of flowage to supply an electrical plant with power was not at that time in the mind of the legislature, or of the jury, or of the court, or of the parties. In the ad quod damnum proceeding, therefore, Carter acquired no electric lighting easement. The method of appropriating private property for a public purpose is defined by statute. There is no pretense that defendant pursued the statutory method after it lost its original easement. If defendant had a right under the act of 1873 to acquire a new easement applicable to the new use, without the consent of plaintiffs, that right has never been exercised. Since defendant never acquired an electric-lighting easement under the milldam act, I decline to express an opinion on the breadth of its title or on the scope of its provisions.
I do not find in the record any substantial proof of the acquiescence suggested by the majority as a reason for denying equitable relief. The power-house and other improvements were constructed on land to which defendant owned the fee. The power-plant is equipped to utilize both water-power and steam-power. By the latter the lighting enterprise can be carried on without the right of flowage. Improvements for utilizing steam-power did not concern *571plaintiffs. As long as the grist-mill ivas operated in good faith, plaintiffs ívere not injured by the maintenance of the dam at the lawful height. Defendant at all times claimed the right to maintain the dam under the original easement. It now asserts that right in this court. It kept a corn-hurr for the ostensible purpose of exercising its grist-mill easement, while its real business was electric lighting. Under the circumstances of this case, plaintiffs should not he deprived of their property because they did not discover, at an earlier date, contrary to the continuous assertions of defendant, that the grist-mill liad been abandoned. If I apprehend the import of the majority opinion, cases are cited to sustain, the proposition that a chancellor should not inconvenience the public or interfere with a public utility by granting an injunction which would interrupt public sendee. It may be conceded that a landowner who knowingly permits a railroad company to build and operate a highway on his land, or a telephone or telegraph company to proceed under like circumstances, is sometimes limited to the remedy for damages. That rule, however, has no application here. Defendant’s power-house is ■ equipped to utilize as much steam-power as water-power. The granting of an injunction would not interfere with the public service, but would permit plaintiffs to control their own property until such a time as defendant acquires by lawful means the easement it now exercises in violation of law.
Fawcett, J., concurs in the dissenting opinion.