dissenting.
Judicial interpretation of the term “public use” as applied to the doctrine of eminent domain has been referred to as one of the most controversial and conflicting areas of the law. As indicated by the majority opinion, there are at least two major lines of decision as to interpretation of the term plus another view which takes the position that the term is not susceptible of definition. Some states have adopted one doctrine or the other, and, in many instances, have, at different times, approved both of the main lines of decision as applied to individual cases. Nebraska has been cited in support of both lines of decision in one or another situation.
The majority opinion here presumably adopts the rule that “public use” means “use by the public,” that is, public employment—and consequently that to make a use public, a duty must devolve on the person or corporation holding property appropriated by right of eminent domain to furnish the public with the use intended, and that there must be a right on the part of the public, or some portion of it, or some public or quasi-public agency on behalf of the public, to use the property after it is condemned. Even if this limited concept of public use is accepted, in the case where the property is held by a municipally owned public utility, its application logically should not be governed by geographic governmental property lines of the municipal corporation owning and operating the utility.
The majority opinion states that: “* * * the water sold to Phillips and Comineo is not delivered to a public service corporation, nor to a private corporation obligated to serve the public, nor subject to any right of the public to compel a public use.” Here the city is itself a public service corporation, admittedly obligated to serve some segment of the public. The majority opinion *226concludes that “* * * the end is the furnishing of water for the private purposes of Phillips and Comineo- for their private use * *
Every private customer of any public utility, whether municipally owned or otherwise, buys or is furnished with the utility service for his, its, or their private use in that sense of the term. This approach assumes that the utility service furnished here by a municipally owned public utility is not furnished as- a public utility, but in some separate and different capacity. It holds that some customers of a municipally owned utility are not a part of the “public” the utility is required to serve, even though such service is specifically authorized by statute and actually undertaken, and that the difference lies- at the geographical boundary o-f the city. An important difference is apparently found in the use of the word “contract” for customers outside city limits. Each utility customer is served under a “contract” but rules, rates, and regulations constitute that “contract” in most instances. Here the evidence shows that a rate regulation was adopted by the city, and that the Phillips and Comineo contracts were within that schedule.
The majority opinion apparently concedes that if there were a duty devolving on the city requiring it to furnish water to customers in the position of Phillips and Comineo, the city would then be acting as a public utility and the taking here would be for a public use even under the limited doctrine of public use. The basis for holding that there is no duty or requirement here rests on an interpretation of section 19-2701, R. R. S. 1943, and section 16-681, R. R. S. 1943, as well as interpretation of statutes specifically granting the power of eminent domain to the city for waterworks.
The language of section 19-2701, R. R. S. 1943, that a city of the first or second class may enter into a contract or contracts to- sell electric, water, or sewer service to persons beyond the corporate limits of such a city is interpreted as meaning that water service outside the cor*227porate limits of the city was intended by the Legislature to be nothing except an authorization of such service without being subject to any utilities duties, and that even when the power was exercised by a city, it did not extend the waterworks system nor require any utility service outside the corporate limits.
The majority opinion also interprets section 16-681, R. R. S. 1943, as being limited to the corporate boundaries. That section requires any city owning, operating, or maintaining its own water system to “furnish any person applying therefor, along the line of its pipes, mains, wires, or other conduits, subject to reasonable rules and regulations, with * * * water * * *.” That section requires the city to regulate and fix the rental or rate and charges and install meters and regulate the fees and charges for meters. Not one word of that section limits the requirement to the city limits and, in fact, read literally, it does not even require the furnishing of such utility service to every inhabitant of the city, but only requires it along the line of the pipes, mains, or conduits, of its water system.
It should also be pointed out that section 19-2701, R. R. S. 1943, was originally section 16-685, R. R. S. 1943. As that section it has been in effect since 1909. That section used to provide that the city “shall not incur any cost or expense beyond its corporate limits in providing the means for water or sewer service, and such service shall not be instituted or continued except to the extent that the facilities of any city for supplying the service are in excess of the requirements of the inhabitants of such city.” In 1957 that section was specifically amended to remove the above-quoted prohibitions and restrictions, as well as to authorize contracts for up to 25 years, and the title of the amendment specifically states those purposes.
Various other sections of the statutes clearly and specifically give the city the power of eminent domain for waterworks both inside and outside the city. See *228§§ 16-674, 16-684, 19-701, R. R. S. 1943, and 19-709, R. S. S'upp., 1965. At least two of these sections relate only to public utilities of cities, while the others include public utilities with other governmental functions.
The majority opinion states that the property of the companies to whom water service is being furnished is located “near the water mains located between the city of Beatrice and its existing well field.” Unless section 16-681, R. R. S. 1943, be interpreted as excluding from the water system all pipes, mains, or conduits outside the city limits, Phillips and Comineo were persons who applied for and were along the line of the city’s pipes, mains, and conduits.
The evidence is also undisputed that the municipal water department has many industrial and commercial users outside the city limits and also industrial users inside the city limits. It seems strange indeed to term industrial usage outside the city limits a private use while industrial use within the city limits becomes a public use where the same publicly owned and operated utility system serves both.
This court stated, as early as 1912: “Whether an undertaking is for the benefit of the people at large, and is so general in its nature that it should be regarded as a public utility, must necessarily be within the discretion of the legislature to determine, and, unless it is clearly private in its nature, the courts: will not interfere with this legislative discretion. Under such circumstances, it becomes a question of ascertaining the intention of the lawmakers.” Lucas v. Ashland Light, Mill & Power Co., 92 Neb. 550, 138 N. W. 761.
As this court stated in City of Curtis v. Maywood Light Co., 137 Neb. 119, 288 N. W. 503, at page 126: “On principle, it would follow that, as the business of maintaining and operating a municipal electric plant and selling current therefrom is wholly outside the truly governmental powers and functions of such city, the place of furnishing or receiving the electric- current would be *229in no manner controlled by the situs of the same with reference to the corporate boundaries of the cities involved in the transaction.”
As this court stated in the Lucas case, supra: “ ‘But to say what a public use is with sufficient comprehensiveness and accuracy to meet the exigencies of all cases is, to say the least, difficult. Nor is it easier to define the limit of legislative power in respect to the right of eminent domain. This power must have some degree of elasticity, that it may be exercised to meet the demands of new conditions and improvements, and the ever varying and constantly increasing necessities of an advancing civilization.’ ”
As early as Vetter v. Broadhurst, 100 Neb. 356, 160 N. W. 109, 9 A. L. R. 578, decided in 1916, this court stated at page 358: “* * * the generally accepted doctrine is, that in order to constitute a public use the property taken must be placed within the control of the public, or of a public agency or instrumentality, and its, use or the rates charged for its use be subject to public control, or it must be within the right of the public to use and enjoy.”
This was followed up by the statement on page 362: “The right of eminent domain is thus held to rest on the right to control of rates by the public.”
As the majority opinion here points out: “The Legislature has power over the very life of a city. It may limit or expand existing powers, or it may destroy the corporate powers of the municipality completely.” The Legislature also has power to govern and control the rates for utility service which it has specifically delegated to first-class cities under section 16-681, R. R. S. 1943.
The water rights here attempted to be condemned will be owned, maintained, and operated by the municipality. The state has declared water to be a public use and its control is entirely in the hands of the Legislature. With the public ownership and development of electrical and water resources in Nebraska in the past few decades, both *230inside and outside municipal limits, the time has long since passed when “public use,” as applied to a municipally owned utility system, should end abruptly at the city’s boundaries, and we believe the legislative intention in that respect is clear. This fact was recognized under a different statute pertaining to electricity and as to an industrial consumer in State ex rel. Dawson County Feed Products, Inc. v. Omaha Public Power Dist., 174 Neb. 350, 118 N. W. 2d 7.
For the reasons stated, we cannot agree with the majority opinion here.