(dissenting). — 1. Section 23 of the Constitution provides that:
“Private property shall not be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner.”
The entire theory upon which the doctrine of eminent domain is based is that the private right in a particular piece of property shall give way to the public good. Of course, coupled with the doctrine is the essential requirement that the private individual whose rights are thus invaded shall receive compensation in money for the property condemned to the public use.—People v. Salem, 20 Mich. 452, 4 Am. Rep. 400; Sadler v. Langham, 34 Ala. 311; Western Union Tel. Co. v. S. & N. A. R. R.Co., 184 Ala. 66, 62 South. 788.
2. Sections 3627 and 3636 of the Code of 1907 belong to the same article of the Code, relate to the same subject, are in pari materia, and, confessedly, must be read and construed together. Those sections are as follows:
“All corporations organized under the general laws of this state or heretofore under a special act of the Legislature, and all corporations organized under the laws of any other of the United States, and which have complied with the constitution and laws of the state of Alabama as to foreign corporations, and which by their charter have the right to manufacture, supply, and sell to the public, power produced by water as a motive force, shall, after acquiring by purchase or otherwise than by condemnation, a dam site or power site comprising not less than one acre of land upon each and opposite sides of any water course, in addition to other powers conferred by law, have the following rights, powers, and authority: To acquire by condemnation the lands and rights necessary for the construction and operation *654of said dam, and works connected therewith or useful thereto, either up or down stream therefrom, and (in the case of nonnavigable streams) to construct and operate at said' site, or other point up or down the stream therefrom, and across said stream, a dam, together with all works incident, necessary, or related thereto, and in connection therewith to impound or divert water of any water course or water courses of this state, and to raise higher such dam and to enlarge the works necessarily related or incident thereto, and to construct other works necessary, incident or related thereto, either up stream or down stream therefrom, as may be required or deemed expedient by such corporation in the manufacture and supply of power produced by water as a motive force. To acquire by condemnation all lands or waters or interests or rights or easements in lands or waters likely or liable to be flooded or damaged by impounding or diverting the water of any water course in this state, or its tributaries, or necessary for the construction or operation of dams or power houses, or works necessary, incident, or related thereto, or likely or liable to be flooded or damaged by the construction or operation or enlargement of the dams, or works incident, necessary, or related thereto, or damaged or taken in the construction, operation, or use of canals, tailraces, or exit ways necessary, useful, or convenient for the escape, conveyance or return of the water used in the operation of the works or power plant. To acquire by condemnation the necessary lands for substations and transmission lines, but shall have no right to condemn a private residence, nor the outhouse, garden, nor orchard within the curtilage of a private residence, for a substation site or for rights of way for its transmission line or lines. Such corporation shall have no right to condemn lands, *655water, or water rights in nse for power purposes by another corporation upon the same water course, having similar powers and essential to its operations; or lands, water, or water rights held by such other corporation for power purposes where the lands, water, or rights in themselves and taken alone or in connection with other lands, water, or rights owned by such other corporation, can be made the reasonable basis of a water power development of at least one thousand continuous horse power; but may condemn lands, hydraulic structures, water, or water rights held by such other corporation at any point upon the same water course, unless the lands, structures, or rights in themselves, and taken alone or in connection with other lands or rights owned by such other corporation can be made the reasonable basis of a water power development of at least five hundred continuous horse power, and may condemn lands, hydraulic structures, water, or Avater rights of such other corporation, at any point upon the same water course, in excess of such other corporation’s actual facilities for using the same (independently of the actual or proposed works of the condemning party) for the manufacture of power by its plant as the same is already established at the time the condemnation proceeding is begun, provided the plant of such other corporation has been in operation for five years or more preceding the commencement of the condemnation proceedings. Nor shall such corporation have the right to condemn the lands, hydraulic structures, water, or water rights of any cotton factory, at any point upon the same water course, in actual and prior use by it for the operation of its plant; but may condemn the lands, hydraulic structures, water, or water rights of such cotton factory in excess of what is actually in use, or may be used at normal stages *656of the stream, for the operation of its plant as already established at the time the condemnation proceeding is commenced. Such corporation may by condemnation acquire the right to flood grist mills and industries in conjunction therewith, together with lands and water rights appertaining thereto. In all cases just compensation shall first be paid to the owner in the manner provided by law for all property taken.”- — Section 8627.
“Any corporation which exercises any of the rights conferred by this article, shall, after the completion of its works and plants, be under the duty and obligation to the public to manufacture and sell to the public electric current produced at its plants, and any corporation manufacturing, selling and supplying power, heat, light, -or electricity produced by water as a motive force under the provisions of this article, must sell such power, heat, light, or electricity to any person or persons, municipal or other corporations, in the order in which requests or demands are made for such light, heat, power, or electricity. Nothing herein, however, shall be construed to require any such corporation to furnish light, heat, power, or electricity to any person or persons, corporation or corporations, until satisfied of his or its financial responsibility, and except in conformity with its reasonable rules and regulations ' and reasonable prices for the same, and except as far as the capacity of its plant will permit.” — Section 3636.
3. I direct attention to that clause in section 3636 of the Code which declares that “any corporation which exercises any of the rights conferred by this article, shall, after the completion of its works and plants, be under the duty and obligation to the public to manufacture and sell to the public electric current,” etc. In other words, under the express language of section 3636 *657of the Code, the Alabama Interstate Power Company will be under no duty to serve the public until it constructs its dam at the dam site which It has obtained by purchase and at said dam site has completed its necessary works and plants. In fact, a careful reading of section 3627 of the Code and of the entire article of the Code of which it forms a part convinces me that it was the plain purpose of the legislature, in said section and article, to invest, first, the right of condemnation, in the corporation seeking to take advantage of its terms, of all properties necessary to the proper construction of a dam, power plant, and other structures necessary and appropriate to its use for the purposes indicated in the chapter, and then, after the construction of such dam, power plant, and other structures, etc., at such dam site, second, the right to condemn, below the dam power plant, etc., so constructed on the same stream, the unused and unneeded parts of other dams, hydraulic structures, etc. It is, of course, necessary that a corporation which is chartered to serve the public shall be given the right to condemn sufficient private property to enable it to complete the works necessary to the proper performance of its public functions. In the instant case the .Interstate Power Company has purchased a dam site on the Tallapoosa river, a nonnavigable stream, and, while it alleges in its pleadings that it has expended much money in and about its contemplated improvement, it does not allege that it has constructed or even commenced the construction of a dam, a power plant, or any other sort of hydraulic structure on said stream at said dam site or at any other point on said stream. While its pleadings abound in allegations as to what the Interstate Power Company intends in. the future to do, the bald fact remains that all that it really shows, by *658its pleadings to have actually done, is that it has bought, on each side of the Tallapoosa river, an acre or two of ground as a site for a dam which it intends in the future to erect for the purpose of impounding the waters of the river above the dam. I can readily see how the acquisition by the power company of this dam site can be held to confer upon it the right of condemnation of lands and properties above the dam site which are likely to be needed by the company in impounding the water above the clam. I can also readily see that, if the company now needs more land than it now possesses at or near the dam site, either up or down the stream for the purpose of properly constructing its dam, .power house, and other necessary structures, it should be held to possess the power to condemn such lands. In so far as the instant case is concerned, the purchase by the Interstate Power Company of the dam site was a necessary preliminary tO' the erection by it of a dam or dams on the Tallapoosa river and through the water thus impounded above the dam or dams to serve the public. As it was thought by the legislature that the water thus impounded ábove the dam or dams would, when a power company authorized to exercise the powers conferred by the article commenced operations, increase the normal flow of water in the river below the dam or dams, the legislature conferred the power, to be exercised as an incident to the real, true improvement of the river by the power company because of the erection of such dam or dams, to condemn the unused and unneeded portions of dams, etc., of private parties down stream. In this way the power company could perpetually, at all available points down the stream, get the benefit of the increased power which the water which it had impounded had added to the stream, and at the same time do no harm to *659a private enterprise already established on the stream below the dam.
4. Under the holding of the majority, a foreign cor-oration which has obtained a license to do business in this state has, in so far as the real truth of this matter is concerned, by the purchase of an acre or two of ground on each side of the Tallapoosa river, acquired the right to now condemn to its use all of the unneeded portions of every private dam on the river below the proposed dam site, although it is not required by the act under which this power of condemnation is held to have been conferred to do any service for the public until “after the completion of its works and plants” at the proposed dam site. In my opinion this proposed condemnation of property 10 miles below the proposed dam site is shown by the pleadings to be totally unnecessary to the-erection by the Interstate Power Company of its “works and plants,” has no connection with such erection, and that, until the power company sees proper to" complete its “works and plants,” no public necessisty for the proposed condemnation can be shown. When the “works and plants” have been completed — if, indeed the power company sees proper at some time in the future to do so — then, according to my construction of the statute the power company may be held to possess the power it now seeks to put into exercise. In my opinion the completion by the power company of its “works and plants” is a condition which must precede any such condemnation as is sought by this proceeding.