delivered the following concurring opinion.
I concur in the result announced in the majority opinion but dissent from the reasoning by which it is reached. The only question raised by the demurrer to the complaint is whether plaintiff, prior to the commencement of the action, had been invested with power to condemn private property, including water and water rights, beyond its corporate limits, for the purpose of constructing a municipal water plant to supply its inhabitants with water for domestic use. The complaint contains averments of certain charter powers to that purpose, incorporated into the municipal charter by initiative-amendment adopted by the people of McMinnville on the first Monday of November, 1907.
It is contended by the defendants that the right of eminent domain is not inherent in a municipality; but it is admitted that such power may be conferred by appropriate legislation. This was clearly and expressly done by the act of February 21, 1891 (Laws 1891, p. 145), which is amendatory of the, act of 1887 (Laws 1887, p. 145; Section 5108, B. & C. Comp.), to the general effect that any incorporated city or town of this State shall have *467the right to appropriate to any public use or uses, for the general use or benefit of the people of such city or town, any private real property, water, water courses, and water and riparian rights; and that such appropriation may extend beyond the corporate limits to or along any adjacent or neighboring lake, spring, or stream; the appropriation to be made in the manner prescribed in that act. By the original act of 1887, that section was added to title 3, ic. 7, of the Miscellaneous Laws (Deady & Lane Comp.), and it was provided therein that the added section should be numbered 53. The words “this act,” found therein, are to be understood as referring to the act of 1862, forming the above title and chapter of the Deady Code, and chapters 1 and 2 of Title 41, B. & C. Comp., of which that section has become a part.
The averments of the complaint, intended to show special charter powers originating with the people of that municipality, and authorizing and empowering the city to exercise the right of eminent domain, are not, therefore, material, and are not to be considered, except in relation to the special limitation imposed by the said act to the exercise of such power. This limitation is in the form of a proviso to the act, “that in all cities containing less than fifteen thousand inhabitants, no action for the appropriation of private property or for the payment therefor, as allowed by this act, shall be taken by the council of such city or town, except a majority of the taxpayers of said city or town, voting at an election to be called and held for that purpose, have voted in favor of said action.” Subsequent to the filing of the complaint this proviso was eliminated by the amendatory act of February 23, 1909 (Laws 1909, p. 243).
There is no averment that the city of McMinnville has a population of 15,000 inhabitants; but I am of the opinion that the special matter alleged is equivalent to an averment that the people of that city have, by a majority vote, *468authorized such action, and therefore the complaint shows that the terms of the statute in that respect have been complied with, and states a good cause of action.
Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Eakin concur in the conclusions reached in each of the foregoing opinions.