concurring in part; dissenting in part.
I agree with the majority that, in the present posture of the case, where it has not actually exercised its authority to regulate or exclude, the city is subject to and in violation of the allocation statutes when acting as a provider of utility services in territory allocated exclusively to plaintiff. It is necessary to remand the first claim for disposition of the factual disputes identified in the majority opinion. I do not concur with the majority’s disposition of plaintiffs second claim because I do not agree that the city has condemnation authority over plaintiffs property that is devoted to a public use.
The power to condemn property for public use that is *25already devoted to a public use must be granted expressly or by necessary implication by the legislature. Little Nestucca Road Co. v. Tillamook Co., 31 Or 1, 48 P 465 (1897); Emerald PUD v. PP&L, 76 Or App 583, 591, 711 P2d 179 (1985), aff’d 302 Or 256, 729 P2d 552 (1986). This is a long held principle of common law. See 1 Nichols, Law of Eminent Domain § 2.2 (3d ed rev 1985); City of Pryor Creek v. Public Service Co. of Okl., 536 P2d 343 (Okla 1975). In our Emerald PUD opinion, we held that the condemnation authority granted to a PUD in ORS 261.305(5) “[t]o exercise the power of eminent domain for the purpose of acquiring any property * * * necessary for the carrying out of the provisions of this chapter” was not specific enough under the Little Nestucca rule to authorize by necessary implication the condemnation of a PP&L generation facility that was serving the public. The Supreme Court reaffirmed the Little Nestucca principle but held that PUDs have the power, by necessary implication, to condemn existing facilities of the private utility. 302 Or 256, 729 P2d 552 (1986). The court found that the condemnation authority arose by necessary implication on the basis of the historical context, purpose and nature of the 1930 constitutional amendments authorizing creation of PUDs. 303 Or at 264.
The majority finds the authority for cities to condemn facilities currently devoted to public use in the PUC territorial allocation statute, ORS 758.470(1), which provides:
“ORS 758.015 and 758.400 to 758.475 shall not be construed or applied to restrict the powers granted to cities to issue franchises, or to restrict the exercise of the power of condemnation by a municipality; and when a municipality has condemned or otherwise acquired another person’s equipment, plant or facilities for rendering utility service, it shall acquire all of the rights of the persons whose property is condemned to serve the territory served by the acquired properties.” (Emphasis supplied.)
The majority agrees that the quoted language which precedes the emphasized language simply preserves existing authority but concludes that the emphasized language permits implication of condemnation authority.
A closer analysis of ORS 758.470(1) indicates that it is a source neither of express nor implied condemnation *26authority; rather, the statute preserves condemnation authority that already exists. The subsection appears in a chapter dealing with utility regulation. It is at the end of the territorial allocation statutes, and it sets out how the preceding statutes are to be applied to municipalities. The first clause, unemphasized above, is the reservation of municipal franchise and condemnation powers. The second clause relates a municipality’s exercise of those reserved powers to the operation of the territorial allocation statutes. It does not say that a municipality is granted such powers under the section; rather, it states “and when a municipality has condemned or otherwise acquired another person’s equipment, plant or facilities * * *, it shall acquire all of the rights * * That does not necessarily imply a grant of authority. The language “when a municipality has condemned,” set off from the main clause of the sentence, presupposes the power to condemn. Simply because the language of the section reserves or refers to certain authority does not mean that municipalities have necessarily been given that authority.
The conclusion that ORS 756.470(1) does not grant cities the authority to condemn property currently in public use does not render the language referring to condemnation powers meaningless. Utilities may own property which is not currently devoted to a public use. There may be occasions when a municipality, under the authority of its general condemnation power, would condemn utility property not currently devoted to a public use. In such an instance, the subsection ensures that the city is not precluded by the territorial allocation statutes from serving the territory previously served by the utility.
The purpose of the inclusion of the condemnation reference in ORS 758.470(1) appears to have been to placate the concerns of municipalities when the territorial allocation provisions were proposed that the PUC would usurp their authority. See Minutes, House Committee on Planning and Development (April 6, 1961 — statement of League of Oregon Cities on SB 487). Cities did not want the territorial allocation provisions to apply to territory, utility service or facilities within city limits as they currently existed or were later extended. The testimony of then Public Utility Commissioner Hill confirms this apparent purpose. Assuming that some power of municipal condemnation existed, he stated that that *27power would cease once the utility secured an allocation of territory from the PUC. Minutes of House Planning and Development Committee, April 6,1961, p 3.
It was the usurpation of existing powers of municipalities that the section was intended to prevent. A fundamental consideration in statutory interpretation and application is the intent of the legislature. That intent should be discerned from the purpose the statute was enacted to serve, and the statute should be applied in accordance with that purpose. Here, both the language of the subsection and its legislative history indicate that its object was only to preserve and protect the existing powers of municipalities in the light of new territorial allocation authority granted to the PUC. The section was not intended to be a grant of condemnation authority, in particular not the specific authority to condemn property already devoted to a public use that the Little Nestucca principle requires. This statute, unlike the statute in Emerald PUD v. PP&L, supra, does not have a legislative history indicating that the authority may be necessarily implied.
The rule in Little Nestucca arises in the context of the evolution of the law of eminent domain and, given that context, it should be narrowly construed and applied. The power of condemnation is a significant attribute of sovereignty that requires no constitutional recognition. Tomasek v. State, 196 Or 120, 248 P2d 703 (1952). The Oregon Constitution does, however, impose limitations on that power; taking of private property must be for a public use and compensated. Or Const, Art I, § 18. The authority to condemn property for a public use remains dormant in the state until the legislature by specific enactment delegates it to a municipality or private corporation. Little Nestucca Road Co. v. Tillamook Co., supra, 31 Or at 6. The legislature has made general grants of authority to condemn but, when an entity wishes to condemn property for a public use and that property is already devoted to a public use, Little Nestucca tells us that it must sustain its claim by authority delegated in express terms or arising by necessary implication. A general delegation of condemnation authority is insufficient. The principle applies even when there is no interference with the former public use because the same use is planned after the condemnation. Little Nestucca Road Co. v. *28Tillamook Co., supra, 31 Or at 6; Emerald PUD v. PP&L, supra, 76 Or App at 589.
The Little Nestucca principle represents a restraint on the delegation of condemnation powers. If the state is going to “change at pleasure its trustees and the object of its trust,” it must do so clearly and expressly. Little Nestucca Road Co. v. Tillamook Co., supra, 31 Or at 6. Condemnation statutes are in derogation of vested rights and should be strictly construed. Port of Umatilla v. Richmond, 212 Or 596, 321 P2d 338 (1958). As this court noted in Emerald PUD v. PP&L, supra, 76 Or App at 589, other jurisdictions have held that the property of private corporations may be condemned by a public entity for the same use only when condemnation is authorized by a statute that specifically names the project to be condemned or that specifically authorizes the taking of property already subject to a public use. Finding such authority to exist by necessary implication must be done with restraint so as to recognize the limitation which the Little Nestucca principle was intended to impose on what is otherwise government’s relatively unfettered power of condemnation.
The city argues that the authority to condemn is found in ORS 221.420, 221.450, 223.005 and 225.020. However, none of those statutes either expressly or by necessary implication grants the requisite authority. ORS 223.005(3) grants condemnation powers related to the provision of electrical services, but that power is limited to “the purpose of erecting and maintaining electric lines” to provide that service. It is not an express grant of authority to condemn property already devoted to a public use; it is a specific grant of condemnation power limited to the sites of power lines. If the legislature had intended to grant more condemnation authority than it did there, it is reasonable that it would have done so with less limited and specific language. The necessary authority does not arise from that statute by implication. The property that a municipality would need to condemn for the specific purposes may well be private property not currently devoted to a public use.
ORS 225.020(1) authorizes municipalities to “build, own, operate and maintain * * * electric light and power plants.” For such purposes a municipality may “[a]cquire right of way, easements or real property * * ORS 225.020(1)(c). *29In exercising those powers, a municipality may “bring actions for the condemnation * * * of private property * * ORS 225.020(2). That also appears to be no more than a general grant of condemnation authority, insufficient for condemning property already devoted to a public use.
In Emerald PUD v. PP&L, supra, 76 Or App at 587, we held that a similar grant of authority to PUDs to condemn “for the purpose of acquiring any property * * * necessary for the carrying out of the provisions of this chapter,” ORS 261.305(5), neither expressly nor by necessary implication grants a PUD authority to condemn existing hydroelectric facilities of private utilities. The Supreme Court held that, in view of the constitutional amendments relating to PUDs, the other events surrounding enactment of the statutes and the provisions of the statutes themselves, the power of a PUD to condemn existing facilities devoted to public use arose by necessary implication. Emerald PUD v. PP&L, supra, 302 Or at 264. To hold otherwise, the court said, would have been contrary to the intent of the voters and the legislature. Here, there is no legislative history to suggest that the general grant of condemnation power in ORS 225.020(2) is anything more than it appears. Without express or necessarily implied authorization, the city may not condemn Pacificorp’s facilities. Again, as noted supra, condemnation statutes are to be narrowly construed, because they derogate vested rights. We should strictly adhere to the Little Nestucca principle, because it is a limitation on an otherwise very broad governmental power. I would reverse the trial court’s grant of summary judgment for city on plaintiffs second claim.
Accordingly, I concur in part and dissent in part.