(dissenting):
I respectfully dissent to the Majority Opinion for the following reasons:
II O.S.1971 § 670 provides that cities and towns may take private property for public use for any necessary purpose, but provides that the city in such cases shall pay for said property. The compensation for the property to be determined as provided for condemnation for railway purposes. There is no question but that the line in question here is the private property of the Public Service Company of Oklahoma, devoted to public use [maybe], but this does not make it public property. Therefore, the property does come under the provisions of 11 O.S. § 670 and the statute is specific, direct and absolute authority for the taking of the electric line proposed by the City of Pryor.
The Majority Opinion brushes off the application of 11 O.S.1971 §§ 563 and 670 as authority for the taking of the electric line by the City of Pryor Creek from PSC with the statement that “We have carefully examined the statutes and find that this power is not delegated to municipalities by these statutes.”
Whether the particular line is devoted to public use at all seems questionable. It appears to have been erected under a lease upon the land of the only customer served. PSC apparently had made no dedication to public use, and has not held itself out to serve any other person in the area. Hence the arguments based on the allegation that property devoted to a public use cannot be condemned are not supportive of PSC, even were they good law.
In Oklahoma, the law is not that a municipality may not condemn property constituting an existing public utility in order to use that property in the operation of its own utility service. The legal situation is that cities are authorized by two self-executing constitutional provisions, Art. X, § 27, and Art. XVIII, § 6, specifically granting to municipalities the authority to own and operate all sorts of public utilities. One way to do this, the most practicable way where a privately owned utility is operating in the municipality, would be to acquire that plant, by voluntary negotiation or by eminent domain. There is, therefore, no public policy against municipal condemnation of a privately owned utility system. In fact, the decision of Incorporated Town of Pittsburg v. Cochrane, 195 Okl. 593, 159 P.2d 534, cited by both parties, by necessary inference, supports that proposition. In that case, water service under a franchise had been dropped by an impecunious public utility and the town had taken over operations. The mortgagee of the property sought to require surrender to it. The court held for the town, subject to the obligation of the town to make com*348pensation. - While it is true that the franchise apparently had expired, the court expressly stated that, at the expiration, the franchise holder could not quit service and take up its property, but that an obligation to continue service under the terms of the franchise continued, subject to termination by either party after reasonable notice and opportunity for a substitute service to be provided. Obviously, such provision for a substitute service was exactly what the Town of Pittsburg had done, and the property owner's recourse was through inverse condemnation for the value of the property. Conversely, the Town could have instituted condemnation proceedings itself, and so might any other municipality desirous of taking over a plant operating within its boundaries.
Whatever Oklahoma City v. Local Federal Savings & Loan Association of Oklahoma City, 192 Okl. 188, 134 P.2d 565, may stand for, it obviously must be limited to a case where the municipality seeks to condemn property to devote it to an entirely different public purpose, and hence to destroy the facility for rendering a public service rather than to continue it in operation, as in the case presented by the Pitts-burg case.
The contention that the authorized condemnation of a privately owned public utility’s property is a forbidden regulation of the utility’s business is, of course, without legal validity. When condemnation is accomplished, there will be nothing to regulate, and the condemnation proceedings themselves, until terminated, do not effect regulation.
The contentions that the municipality must show a necessity for acquisition of the utility property, and that this is not established by the mere passage of a resolution stating necessity is insufficient, are not supported by the authorities. In Delfeld v. City of Tulsa, 191 Okl. 541, 131 P. 2d 754, the Court expressly stated that in such a resolution “there was presented a prima facie case that the use to which the property was to be put was a public use; and, when landowner denied such contemplated use was a public use, it was proper for trial court to require him to assume burden of proving such use was not a proper public use.” [Emphasis ours.] Note from the emphasized words that it is the use of the property as a public use, which is in issue, not whether the patrons can be served by the owner of the property as PSC seems to contend. Obviously, the operation of a utility plant by a municipality in the exercise of its constitutional authority is a public use.
The argument in the Majority Opinion, that the Legislature was aware that the general powers of eminent domain were not sufficiently broad to permit condemnation of property .of a pre-existing public utility already devoted to the same public use, is based upon the erroneous assumption that 18 O.S.1971 § 437.2 and 11 O.S. 1971 § 1613 support that conclusion.
The fact that the Legislature enacted 18 O.S.1971 § 437.2, which provided for Rural Electrification Cooperatives [REC] to continue operation in an area which was later included within the boundaries of a city, town or village without obtaining the consent, franchise, license permit or other authority of the city, town or village, and further provided that if the city, town or village operated its own electric system, then on the city’s request the cooperative would transfer their facilities to the city, does not mean that the Legislature intended anything other than to provide a special summary procedure whereby the transfer could be expeditiously made. 11 O.S.1971 § 1613 provides for condemnation of property already devoted to a public use by an Urban Renewal Authority and not by a city, and is, therefore, not applicable to this case.
I would, therefore, hold that 11 O.S.1971 § 670 authorizes Appellant, City of Pryor Creek, to take the property in question by eminent domain.