(dissenting.)
I dissent. The natural, fair, and reasonable import of the language employed in the statute authorizes the incorporation of companies for the purpose of constructing, maintaining, and developing canals for the purposes of navigation and also for the purpose of creating water power for public use, and confers upon such corporations the right of eminent domain to the extent necessary to carry those objects into effect. Such improvements may be developed independently or they may be worked out jointly, and there is nothing in petitioner’s articles to justify the assertion that navigation is not one of the primary objects to be attained. There is no reasonable ground for the conclusion that it was the intention of the legislature to limit the right of way for such canals to the particular watershed where the waters are to be secured. There was no object in fixing such a limitation, since it would prevent the working out of the very spirit and purposes of the statute.
It is not material in this case that the lakes and streams constituting the Birch lake watershed are navigable waters and find a final outlet *453into an international stream. It is of no importance that the enterprise diverts a portion of those waters over a divide into another water course. The question here is: How much, if any, does the working out of the plan damage respondent in its capacity as a riparian landowner, by diverting waters which would otherwise flow by its premises ? To the extent of the injury suffered in such capacity compensation must be assessed. But in so far as respondent is interested in common with the general public, it has no standing in court to raise objection to an interference with public rights in navigable waters. All of respondents’ private interests, however affected, may be condemned and paid for; such interest being subject to the rights conferred upon public service corporations. This proceeding does not undertake to interfere with public rights. There is no attempt here to condemn them. The state has no authority to confer such authority, and if, in putting the scheme into execution, petitioner diverts waters so as to affect the public interests therein, then the constituted public authorities may call it to account or enjoin the infringement. In this case, however, the trial court accepted every position (save one) contended for by petitioners; found that the public interest required the development of the enterprise ; and did not find that respondent would be damaged in the least. The court denied the petition upon the grounds, only, that private interests were subserved.
I dissent, also, from the decision of the majority to the effect that there is such a distinction between water power converted into electrical energy and water power as such, that the fonder is susceptible of public use whereas the latter is only available for private use. No authority cited and no principle of law supports such distinction. This case does not come within the principle involved where a special statute confers the right' of eminent domain upon special private enterprises. It is not analogous to the milldam acts, where the right of eminent domain is conferred upon a private party upon the theory that the business is of such public importance as to warrant it. There is no commingling of public and private uses in the articles and petition. It is true that water power, as such, cannot be so economically and widely distributed as electricity, but it can be to some extent, if deemed advisable. It is to be assumed that the petitioner will make the most *454rof its opportunity, and, being a public service corporation, it is subject to the control of the state, to the end that the public shall be served to the best advantage and at reasonable rates. The mere fact that the petitioner may incidentally receive pecuniary or private advantage is no objection, and that possibility is applicable to all public service corporations.