*392Dissenting Opinion
DeBruler, C. J.This case was commenced in the Warrick Circuit Court by the appellee, on August 10, 1965, by the filing of a complaint for condemnation.
The trial court thereafter overruled objections filed by the appellant to this complaint for condemnation, orderd that the appellee was entitled to take the appellant’s property described in the complaint and appointed appraisers. From this ruling and order the appellant appeals.
The property sought to be condemned by the appellee was described as follows in the complaint:
“4. The property sought to be condemned by plaintiff is the defendant’s electric utility property located in the City of Boonville, Indiana within the subdivisions identified as Mac-Ray Acres and East Gate Park, used and useful in furnishing electric service to consumers, including all intangible rights or interests in the furnishing of electric utility service in said subdivisions, if any.” (Emphasis added.)
The appellant objected to this proposal to take upon thirty-four grounds which included:
First, it is conceded by both parties that the electric supply system which appellee desires to condemn serves an area presently located within the Boonville city limits, but which was outside the city limits as they existed on June 6, 1941, and there exists a contract between the appellant and appellee which contains the following provisions:
“That it [City of Boonville] will sell electricity only to its customers residing within the city limits of Boonville, Indiana, as said city limits existed on June 6, 1941, and to those customers who are located on what is known as the ‘Lake Drain Line’ and to Mary Johnson, J. L. Petrey, J. D. Burton and the Fair Grounds Association; and that it will not extend its service to any other customers or territory without the written consent of the Company and without first obtaining legal authority to do so” (parenthesis added).
*393And second, there exists a temporary injunction ordered February 19, 1965, in a different case between these same parties in the Warrick Circuit Court restraining the appellee from furnishing electrical energy to the area where the subject supply system is located, which order first appeared in the following form:
“IT IS THEREFORE CONSIDERED, ADJUDGED AND ORDERED by the Court that the defendants, and each of them, and their officers, agents, servants and employees, be and they are hereby enjoined from
(a) breaching the written contract entered into by and between the plaintiff and the defendant, City of Boonville, Indiana, on August 29, 1946, as amended, and
(b) selling and delivering and offering to sell and deliver electric energy to customers located on the distribution line of the defendant, City of Boonville, Indiana, known as the ‘Lake Drain Line’, who were not customers of said defendant on the 5th day of May, 1959, and
(c) interfering with plaintiff’s exclusive right to sell and deliver electric energy to customers located on said ‘Lake Drain Line’ who were not customers of . the defendant, City of Boonville, Indiana, on the 5th day of May, 1959, and
(d) selling and delivering and offering to sell and deliver electric energy to customers and users to whom plaintiff has the exclusive right to sell and to whom defendant, City of Boonville, Indiana, is prohibited from selling by the terms and provisions of said written contract as amended, and
(e) interfering with plaintiff’s exclusive right to sell and deliver electric energy to customers and users to whom plaintiff has the exclusive right to sell and to whom defendant, City of Boonville, Indiana, is prohibited from selling pursuant to the terms and provisions of said written contract as amended.
“IT IS FURTHER ORDERED, by the Court that this temporary injunction shall be and remain in full force and effect until the final hearing of this cause or the further order of this Court, provided, that this order shall not *394be deemed to affect customers of the defendant City of Boonville presently being served by it as of the date of this order.”
The trial court thereafter on July 21, 1965, made the following order in that parallel case:
“The Court finds, orders and adjudges further that the doing, by the defendants and said respondents, of any of the following acts enumerated in petition by the defendants for interpretation of temporary injunction herein do not and will not constitute a violation of said temporary injunction issued and entered of record February 19, 1965, to-wit:
(a) Furnish plaintiff notice of the City’s intention to proceed through negotiation, or eminent domain if necessary, to furnish municipal electric service to customers in two subdivisions within the City of Boonville known as Eastgate Park and Mac-Ray Acres.
(b) Consider and adopt, if advisable, a resolution by the Board of Public Works directing such action.
(c) Consider and adopt, if advisable, an ordinance by the Common Council of the City of Boonville directing such action.
(d) Negotiate with the plaintiff toward accomplishing the above without further litigation.
(e) Commence and pursue eminent domain proceedings if the negotiations are not fruitful.”
I cannot conclude, as does the majority, that the above quoted provision of the contract is a legal bar to the exercise by the appellee of its power of eminent domain. That power is derived from statute, being Burns’ Ind. Stat. Ann. §§ 54-601, 54-602, 48-1902 and 48-7203. It is apparent that the appellee has the power of eminent domain in support of municipal electrical purposes. The said provision of the supply contract does not mention the eminent domain power of the appellee. The appellee did not attempt by this provision to contract away its power to condemn appellant’s property for a public use. In addition to the absence of an attempt to *395specifically give up its right to exercise eminent domain power, this Court has held in a case between these same parties that any contractual provision attempting to give up the power of eminent domain would not bind the party having the power. In Southern Indiana Gas & Electric Company v. City of Boonville (1939), 215 Ind. 552, 20 N. E. 2d 648, this Court said:
“The power of eminent domain is an attribute of sovereignty and inures in every independent state. It cannot be surrendered, and, if attempted to be contracted away, it may be resumed at will. It is superior to all property rights, and extends to all property within the jurisdiction of the state. Every contract, whether made between the state and an individual, or between individuals only, must yield to it whenever necessity for its exercise shall occur. Every contract is made in subordination to it. The existence of this power must be presumed to be known and recognized by all, and need never be carried into express stipulations, for this would add nothing to its force.”
The temporary injunction as modified by the court specifically contemplated the action taken by the appellee in this case and does not constitute a bar to this eminent domain action. Naturally, the appellant is entitled to a full and complete trial on the issue of damages as a result of this take sustained by it.
I would affirm the trial court.
Note.—Reported in 248 N. E. 2d 343.