dissenting: This is a petition to rehear the decision in this case, 169 N. C., 472. The petition does not comply with Rule 53 of this Court, for it does not “assign the alleged error of law complained of or the matter overlooked.” 164 N. C., 556.
The court withdrew the case from the jury by instructing them t,o answer issues a and b “No,” instead of leaving to them to answer upon the evidence. These issues are as follows:
“a. Are there water powers, rights, and properties on the land of the respondents, as described in the petition, capable of being developed' for the production of electric power for use in connection with and in addition to the electric power already developed and in use by the respondent, Hendersonville Light and Power Company?” and
"b. Are there water powers, rights, or properties on the land of the respondents, as described in the petition, which are being held by the respondent, Hendersonville Light and Power Company, to be used and to be developed for use In connection with or in addition to any power actually used by the said respondent, Hendersonville Light and Power Company?”
Mr. Justice Hoke stated the matter clearly in his opinion in this case at the former hearing, R. R. v. Light and Power Co., 169 N. C., at p. 480, as follows: “Whether they (the defendants) can carry out their purpose and utilize this power in substantial aid of the power already developed and without unwarranted interference with the rights of the plaintiff who owns along the opposite bank, is, in my opinion, a mixed question of law and fact, and, on the record, requires that the issue be submitted to the jury.”
Brown, J., also said, 169 N. C. at p. 479: “I concur in the judgment of the Court submitting a proper issue to the jury to determine the fact as to whether the defendant is using or holding its water power to be used or developed for use in connection with or in addition to any power actually used by it.” Allen, J: (with whom Walker, J., con*321curred), said: “I do not tbink the defendant has any property in the water in the stream, and that it is only entitled to a reasonable use of it as it passes his land, which may include the use for manufacturing purposes.”
This last is all that the defendant sought, and it is for its choice to say whether it shall use it by an undershot or an overshot wheel for grinding, or conduct it through a tube to a point lower down, so that in that way its fall shall utilize the force of gravity which will be com verted into electricity and carried by cables to run the street cars and lights of the defendant, which is exactly the use to which plaintiff itself seeks to- apply it.
The testimony of the witnesses R. M. Oates, W. H. Banks, J. "W. Seaver, and D. R. Shearer was ample to go to the jury and, indeed, clear and explicit that the defendants could develop on their half of the stream 1,360 h.p., and that this could be done without materially interfering with the rights of the plaintiff on the opposite side of the stream. As we held before, this evidence should have gone to the jury, and in withdrawing it the judge assumed to himself the functions of the jury and denied to these defendants their constitutional rights.
This is a proceeding by the plaintiff to take from the defendants their one-half of the stream which is the boundary between the two. It is admitted that the line between them runs to the middle of the stream, the defendants owning one-half of the bed of the stream for half a mile on the south side and the plaintiff owning the other half. The plaintiff alleges that it has a right to condemn this water power of the defendants, notwithstanding a statute prohibiting the condemnation of any water power, because, as it alleges, the defendants cannot utilize it for that purpose, and, therefore, the plaintiff can take it against the will of the defendants. In R. R. v. Oates, 164 N. C., 169, and in R. R. v. Light and Power Co., 169 N. C., 472, we held that upon the evidence this was an issue of fact which the defendants were entitled to have a jury pass upon. The plaintiff again insists for the third time that it can have the judge withdraw that issue from the jury and find as a matter of law that the' defendants could not use their half of the stream to generate water power.
Laws 1907, ch. 74, contains this provision: “Water powers, developed or undeveloped, with the necessary land adjacent thereto for their development, shall not be taken” under condemnation proceedings. This act was sustained in Power Co. v. Whitney, 150 N. C., 34.
There are many reasons why the defendants cannot be deprived of their property in this case without violating the guaranty that property shall not he taken, as was said, 169 N. C. at p. 474, “without due process of law and only according to the law of the land. The defend*322ants bad tbe right to have the issue of fact (whether they could utilize their half of the stream) found by a jury, and only upon such finding should the court have imposed the judgment of the law.”
In Dargan v. R. R., 113 N. C., 596, it was said that “the right of the State to take private property rests upon the ground that there is a public necessity for such appropriation.” It is not a public necessity that the plaintiff should take from the defendants the enjoyment of their property in this water power. When a railroad track is to be laid out from one point to another, the construction of the railroad being a gwíw-public matter, it is a public necessity that it shall lay out its line, with such restrictions as the statute requires, across the land of individuals, and, therefore, the right of eminent domain is conferred upon the railroad company with the correlative right that, being a public corporation, it can be regulated by the State; but it is not a public necessity that the railroad company shall take the defendant’s water power, which is not needed for its right of way and is merely a facility for the subsequent operation of the road. It would be as accurate to say that the plaintiff could condemn a coal mine 100 miles or more off its line to generate power for its engine, or a forest anywhere to obtain wood for its engines or cross-ties for its track, as to say that it could condemn the defendant’s falling water to generate electric power to move its engines.
It would be as just to say that one railroad could condemn the engines or the freight cars or the passenger cars of another company, because that would be a facility to operate its lines fully as much as to take from the defendants the water power, which the defendants purchased to aid in running their street cars in Hendersonville and to furnish light and power for the citizens of that town, for the convenience of the plaintiff in running its railrOad.
But if it were conceded, as it cannot be, that it is a public necessity, from the nature of the property it is clear for many reasons that, while it would be a convenience, it is not a necessity at all.
1. The plaintiff and defendants might build a dam, or several dams, across the stream in its precipitous course and divide the water at the middle of the crest, as Goat Island divides Niagara Falls into the Canadian and American Falls. There is evidence, and it is also common knowledge, that this is practicable and has been done in many cases.
2. Or, the plaintiff and the defendant might cooperate by having all the water conducted into one power plant and equally divide between them the electricity created. It is common knowledge that this has been done in many cases, and it is entirely practicable. The great power plants in the State thus divide and distribute to different towns *323and to different individuals the power generated by them. Certainly the plaintiff and defendants might divide it into two equal parts.
3. Or, the defendants might, by putting in a wing dam, use their half of the water without in any wise diminishing the capacity of the plaintiff to use the other half. There was ample evidence in this case that this could be done, and that as a matter of fact it was being done at other points in the State and all over the country. While the defendants seemed to prefer this method to the other two above named, they were not restricted to this. They are entitled to use and enjoy their half interest in this water power, because it is evident that it can be utilized by them for the purpose of running their street cars and furnishing power and light.
In Linderman v. Lindsey, 8 Am. Decisions, 325, Mr. Justice Sharswood says: “When the proprietor of the two opposite banks of a stream of water are desirous of enjoying the advantage of the water for propelling machinery, a dam for that purpose cannot be built, except by mutual consent, unless, indeed, it may be what is termed a, wing dam confined to the soil of the person who erects it, on that half of the bed of the stream which belongs to MmThis principle is also laid down by Shaw, C. J., in Elliott v. R. R., 57 Am. Dec., 88, quoted by Brown, J., in Harris v. R. R., 153 N. C., 545.
In Charnock v. Higuerra, 52 Am. St., 197, it was held: “Since the right to make use of the stream is common to all who own property on its shores, there would prima facie seem to be no cause of complaint for any use made by another unless he were actually injured-by such use”; and all the authorities hold that whether the party is making a reasonable use is a question of fact. This case also is quoted by Brown, J., Harris v. R. R., 153 N. C., 544.
This stream, in the half a mile that it flows between the plaintiff and defendants, has a fall of 219 feet and is capable of generating 2,700 h.p., of which the defendants are entitled to use one-half. The witnesses give many instances in which one-half of the stream is thus utilized by wing dams, some of which are set out in this case, 169 N. C. at pp. 475 and 476. Whether the defendants can utilize one-half of the water by a wing dam is a matter of fact and not of law. Prentiss v. Geiger, 74 N. Y., 341; Bullard v. Mfg. Co., 77 N. Y., 525; Gould on Waters, sec. 220; Dumont v. Kellogg, 18 Am. Rep. (Mich.), 102; Hayes v. Waldron, 84 Am. Dec. (N. H.), 105; Merryfield v. Worcester, 14 Am. Rep. (Mass.), 592; Ullrith v. Water Co., 4 L. R. A. (Ala.), 474. And the books are full of similar cases.
What the defendants purpose is not a division of the water, taking it out of the stream, but to utilize the force of gravity contained in the falling of one-half of this water and converting it into electricity for the operation of their street railway and furnishing power and *324light to their customers in fulfillment of their contract. This is not a navigable stream, and, therefore, the plaintiff cannot object that this use might diminish the depth of the water on its side — if, indeed, it would have that effect.
While the defendant stressed mostly its evidence that its half of the water could be utilized by a wing dam, it did not abandon its other rights, which have been held in many cases by the best courts. In Roberts v. R. R., 74 N. H., 217, it is said: “The question, therefore, is whether they have the legal right to have the water divided and their share assigned to them in severalty, if this can be done without unreasonably interfering with plaintiff’s rights. It is clear that they have such a right if the same rule applies to improved and unimproved water powers, for it is settled that the court has power to make such orders in respect to the way the several owners shall exercise their right in the common property as will be for the best interests of each of them, in so far as it can be done without any unreasonable interference with the rights of the others.” In Warren v. Mfg. Co., 26 L. R. A., 288 (86 Me., 32), it is said: “As between opposite riparian owners upon the same channel, the court might have jurisdiction to equalize each owner’s use of the water and to mark out beforehand each owner’s share, and this by any appropriate proceedings and instrumentality. . . . Opposite riparian owners upon the same channel have a common and equal right to the use of all the water flowing in that channel as it passes their opposite land. If the volume and flow of water be limited, the use by each riparian owner may be limited by judicial action, in proportion so that the enjoyment be kept equal, like the right.” To same purport, Sooville v. Kennedy, 14 Conn., 349; Olmstead v. Loomis, 9 N. Y., 423; Olney v. Fenner, 2 R. I., 211; Lyon v. McLaughlin, 32 Vt., 423; and Burnham v. Kempton, 44 N. H., 78.
The defendants’ interest in this stream is either a water power or it is not. If it is a water power, then whether they can utilize it or not is an issue of fact for the jury upon the evidence which they have offered. If it is not a water power, it is not subject to condemnation, for the plaintiff does not seek to condemn it for right of way. If the defendants’ interest in this water is not a pawer power, neither is the plaintiff’s interest, and the statute does not authorize it to create a water power by taking the defendants’ interest which is not a water power. Besides, if the plaintiff could do this, the defendants could do the same.
The plaintiff occupies a most extraordinary position. It says, in effect, to the defendants: “We will not permit dam or dams across the stream and a division of the water at the middle of the crest whereby you may enjoy your half of the water power. We will not cooperate with you in putting up a plant to generate electric power and divide *325tbe power produced. We will not permit you to put in a wing dam whereby you may utilize only your half of the water without detriment to us. We will not permit you to have a jury to decide upon the evidence whether either of these three methods can be used. We have offered you $1,000 for your half interest in this stream and you have offered us $40,000 for our half. We will not accept your offer nor put the property up to the highest bidder. And having thus prevented you-from enjoying your half of this water power, we will cause the court to decree that you cannot utilize it, and, therefore, we will take your property.”
It may be possible that some other plaintiff has-thus boldly stated his intention to take the property of another because he has prevented that other from using it. But, if so, such ease cannot be found by ordinary research. The plaintiff’s attitude reminds us of the fable in iEsop. Irritated at the resistance of the owner, the plaintiff says, in effect, to the defendants: “Anyway, I need your property in my business, and I’ll take it.”
The defendants further contend that they are entitled to be protected in their rights under the provisions of the Federal Constitution that they shall not be deprived of their property “without due process of law, nor denied the equal protection of the law,” on four grounds:
1. It is not the “law of the land” that property off the line of railway not needed for its construction can be taken to aid in its operation, such as a coal mine, or wood for fuel or for cross-ties, or water power. Such property for such purpose cannot be taken under “due process of law.”
2. Neither can public property like that of the defendants, already devoted to the same public purpose, be taken under the right of eminent domain. Lewis Em. Domain, sec. 400. As well might one railroad company condemn the track, or the engines, or the. cars of another. While one road can condemn a right of way across the track of another, it does not take the sole and exclusive use of the track at that point, as the plaintiff seeks in regard to the property of the defendants.
3. Both the State and Federal Constitutions guarantee the right of trial by jury as to disputed issues of fact. Butting the case’ most strongly for the plaintiff, whether or not the defendants can utilize their half interest in this water power is, upon the evidence, a much disputed issue of fact, and the court could not deprive them of this right under “the law of the land.”
4. The public policy of the Federal and State governments, as shown by statutes and by decisions, notably in the judgments dissolving the American Tobacco Company, the Standard Oil Company, the Sugar Trust, the Hartford and New Haven Railroad Combination,' and many other cases, is that such combinations are injurious to the *326public welfare and “contrary to tbe law of the land.” The Department of Justice is considering instituting similar proceedings to dissolve the great water-power trusts which are taking into their control the most vital sources of heat, power, and light, the water powers of the country. A recent publication made by authority of the United States Government, of which we take judicial notice, shows that in this State already two companies, the Southern Power Company and the Carolina Power and Light Company, own 75 per cent of the water power of this State, and that eight companies control 94 per cent of the total water power of the State, while forty-nine cities and towns altogether control only 1 per cent. If the plaintiff can through the courts wrest from the defendants the enjoyment of their half of this water power which is being used for the town of Hendersonville, then that much will be taken from the 1 per cent of water power which these forty-nine cities utilize to be added to the 94 per cent which has been gathered by the eight corporations which the Government reports, even if some of these eight are not merely aliases for the larger ones. It appears that both the president and. secretary and treasurer of the plaintiff company are directors in the Northern and Piedmont Railroad Company, which said treasurer in his testimony states is known as “the Dukes’ road.” It is common knowledge that the Southern Power Company, one of the companies reported by the Government as engrossing the water power of this State, is controlled by the same interests. The defendants have the right, in this proceeding, to have a jury pass upon the question whether the plaintiff company is not potentially the property of the same financial “interests,” for, if so, to grant to it the right to absorb this property and take it from the defendants is in violation of the “law of the land” which the Government is seeking to enforce against these great trusts and combinations which would take to themselves the entire water power of the State, the source of light, heat, and power of the future.
For these reasons the defendants invoke the protection of the XIY Amendment at the hands of the courts.
It would seem, therefore, that the property of the defendant is not subject to condemnation, and that the plaintiff cannot, by preventing the defendant from using it, make it subject to condemnation, and that in any aspect the defendants are entitled to a trial by jury, and to deprive them of such right is in violation of both the State and Federal Constitutions.
Joseph B. Lee, “one of the owners and directors of the plaintiff company” (as he styles himself), testified that, as such, he offered the defendants $1,000 for their one-half of this water power, which he “thought was a fair offer.” But he admitted, on cross-examination, that he refused to take $40,000 for the plaintiff’s half when offered by *327tbe defendants. Tbe uncontradicted testimony is tbat tbe defendants bad $40,000 in bank to back tbis offer, tbongb it was admitted tbat tbe defendants’ capital was small as compared with tbat of tbe plaintiff.
Tbe plaintiff’s evidence was tbat it was intended to spend $2,000,000 on tbe development of tbis water power. TJnder tbe statute a waterpower plant cannot condemn another’s water power, wbetber in use or not. Tbis is only allowed to an interurban railroad company, and even tben only if tbe water power sought to be condemned is “not being used, or held to be used, for development by its owner.” Tbe sum of $2,000,000 intended to be spent by tbe plaintiff on tbis plant is evidence for tbe jury to consider wbetber it is seeking bona fide to take tbe defendants’ water power merely for an interurban railroad or to create a water power. Indeed, tbe complaint avers an intention to build a very short railroad and “to sell its surplus power.” In tbe latter event tbe plaintiff cannot condemn even an unused1 water power.
Tbe plaintiff says it will not sell its half of tbis water power, which is only a small párt of its bolding, for $40,000, but, strangely enough, it insists tbat it shall be allowed to use tbe “strong arm” of tbe law to take all tbe water power of tbe defendants, being tbe other half of tbe stream at tbis point, for $10,000. Such claim is not founded in justice, without respect to persons, nor consonant to tbe sentiment of tbe ages. “Nathan said unto David, There were two men in one city, tbe one rich and tbe other poor. The rich man bad exceeding many flocks and herds; but tbe poor man bad nothing save one little ewe lamb, which be bought and nourished up; and it grew up with him and with bis children; it did eat of bis own meat and drank of bis own cup and lay in bis bosom, and was unto him as a daughter. And there came a traveler unto tbe rich man and be spared to take of bis own herd to dress for tbe wayfaring man tbat bad come unto him, but took tbe poor man’s lamb and dressed it for tbe man tbat was come unto him.” 2 Samuel xii, v. 1-4.
¥e know, too, tbe story of Naboth’s Yineyard, I Kings, cb. xxi. They who have been to Potsdam near Berlin will remember tbat when Frederick tbe Great was gathering in tbe lands to make tbe famous park for bis palace at Potsdam, there was a miller whose little tract was included within tbe bounds of tbe park, who refused to sell it at any price. When tbe great king was advised to take i-t anyway, though one of tbe most arbitrary of men, be replied: “Let tbe miller keep bis mill, tbat it may be known tbat there is law in Prussia.” Tbe rustic mill still stands, kept in repair at public expense, and on it in gold letters there still abides this inscription: “Let the miller keep bis mill, tbat it may be known tbat there is law in Prussia.”