dissenting: When tbis case was formerly before tbe Court it was decided that the question at issue between the parties should be referred to the jury. In a concurring opinion then filed my opinion was stated as follows:
“Our statute, in permitting water powers to be condemned for public use, withdraws from the effect of the law any water power which is being used or held to be used or to be developed for use in connection with or in addition to any power actually being used for public service, etc.
“There is evidence in the record tending to show that defendant is the riparian owner of land on one side of Green River, where there is a considerable fall in the stream, giving promise of a good water power, if properly developed. The officials of the company testified, further, that defendants purchased and now hold this property with a view to aid their power already developed and now being used under a charter for the benefit of' the public; that they have great need of such undeveloped power and purpose to utilize the same as contemplated and provided by the statute.
“Whether they can carry their purpose and utilize this power in substantial aid of the power already developed, and without unwarranted interference with the rights of the plaintiffs, who own 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.”
On further consideration, I am confirmed in the opinion thus expressed, that the issue should be referred to the jury, and I, therefore, dissent from the present disposition of the appeal.