concurring: I have carefully examined the record in this appeal several times, and I do not find a line in it which would warrant the charge that the plaintiff is a trust or that it is owned by the Southern Power Company or by the Dukes; but if these facts appeared, they would not' justify us in denying to it the recognition of its property rights.
The only place where the word “Duke” appears is on page 22 of the record, where John A. Law, a witness for the plaintiff, said, on cross-examination : “I am a banker, cotton mill manufacturer, and a director in one railroad, the Piedmont and Northern. The same interests own controlling stock in that and the Southern Power Company. Never *318heard this railroad called the Southern Power Company road; have heard it called the Duke road. I think he is president.” That this refers to the Piedmont and Northern I think clearly appears from page 23 of the record, where the directors of the plaintiff company are named, among which the name of Duke does not appear, and from page 54 of the record, where W. S. Montgomery testifies that he is president of the plaintiff company.
If, however, the plaintiff is a trust, the fault is with the General Assembly of this State, which granted to it its charter and from whom it derives all of its powers. It is not claimed that these powers have been exceeded, and if this could be shown, it ought to be pointed out in order that the State may take steps to have the charter forfeited.
There is but one question in this appeal, and that is whether the defendant has offered evidence tending to prove that its water power and water right, which the plaintiff seeks to condemn, is not the subject of condemnation.
If the defendant has offered evidence tending to prove this fact, it is entitled to have it considered by a jury; but if not, it was the duty of the judge to so hold as matter of law.
The right of this plaintiff to condemn water rights and water powers is clearly recognized in an opinion by the Chief Justice, between the same parties, in R. R. v. Oates and the Light and Power Co., 164 N. C., 172, and repeated in 169 N. C., 474, where he says: “In R. R. v. Oates, 164 N. C., at p. 172, the Court said, as to condemning water power: ‘The matter turns, therefore, on the question whether under the terms of eh. 94, laws 1913, the land in question is subject to condemnation,’ and the Court further held that it could not be condemned if it was ‘held to be used or to be developed for the use in connection with or in addition to any power actually used.’ ”
This cannot mean anything except that the plaintiff can condemn the water right or water power of the defendant unless the defendant proves that the water right or water power was “held to be used or to be developed for use in connection with or in addition to any power actually used.”
This is the issue between the parties, and the point of difference is whether the defendant has offered evidence that its water power was “held to be used or to be developed for use in connection with or in addition to any power actually used.”
As pointed out in the opinion of Associate Justice Brown, where the evidence is quoted, the defendant did not claim that its water power could be so used or developed except by running a dam to the middle of the stream and by diverting one-half the stream and conducting it one-half mile through its own land before its return to the stream, and, in the opinion of the Court, this is not permissible, the Court having *319adopted as the correct rule determining the right in nonnavigable water of opposite riparian owners the one laid down by Angelí on Watercourses, sec. 100, as follows: “Whenever a water-course divides two estates, the riparian owner of neither can lawfully carry off any part without the consent of the other opposite; and each riparian owner is entitled, not to half or other portion of the water, but to the whole bulk of the stream, undivided and indivisible, or per my et per tout. To use the language of Platt, J., in Vandenburg v. Vanbengen, in New York. : . . ‘The grant of an undivided share in a stream would not authorize the grantee to appropriate or modify the stream to the injury of others who have a joint interest in it. The property in a stream of water is indivisible. The joint proprietors must use it as an entire stream in its natural channel; a severance would destroy the rights of all. In Blanchard v. Balcer, in Maine, the defendants, who had their dam on the side of the stream opposite to the plaintiff’s dam, contended that they had a good and legal right to one-half of the water in the main stream, and to carry it off by deepening an ancient outlet or canal. . . . It was held that the defendants had not a right to one-half of the water in the main stream of the river, so as to abstract it by means of the channel in question. The Court said, in reply to the suggestion, that the owners of the dam on the eastern side of the river had a right to half the water, and to divert to that extent: ‘It has been seen that if they had been the owners on both sides, they had no right to divert the water without again returning it to its original channel. Besides, it was impossible, in the nature of things, that they could take it from their side only; an equal portion from the plaintiff’s side must have been mingled with all that was diverted.’ ”
The reason for permitting the plaintiff to condemn the water power or water right of the defendant, when the defendant cannot condemn the water power or water right of the plaintiff, is that the General Assembly has conferred this power upon the plaintiff and those doing a like business, and has denied it tp the defendant.
The Chief Justice said in R. R. v. Oates, 164 N. C., 169: “It would, therefore, seem that if a company needed a water power to produce electric power, and styled itself an electric light and power company, it could not condemn the water power of another for that purpose. Chapter 74, Laws of 1907. But if it styled itself ‘a street and interurban railway company,’ and should ‘own land on one or both sides of a stream which can be used in developing water power,’ it might have condemned the additional lands ‘needed to fully develop such water power.’ Chapter 302, Laws 1907.”
The General Assembly, and not the courts, have made this distinction between the powers and rights granted to the plaintiffs and de*320fendants respectively, and as this is a question of State policy committed to the General Assembly, we must obey, not thwart, its will.
It would seem that the defendant, who is represented as a “poor man” with “one little ewe lamb” (one-half of a water power on one side of a stream), ought to be grateful that it has "escaped the payment of $40,000 for another “little ewe lamb” (one-half of the stream on the opposite side) of the same size and weight and kindred, which the jury has found was only worth $10,000.
It will be remembered that Nathan was dealing in figure of speech when he was talking to David, and that David’s anger was greatly kindled against the rich man, and that Nathan said to David, “Thou art the man.”