dissenting. Eminent domain, in any real sense, is not involved here. The plaintiff already has a contract right to the land in question. These proceedings are essentially pro forma pursuant to the agreement of the parties. Our statute (30 V.S.A. §110) is broad enough to permit condemnation proceedings where a contractual right exists. The corresponding federal statute (16 U.S.C.A. §814) is not.
This is not a proceeding to acquire land for a dam or other construction. The construction has already been done at a time prior to the enactment of any requirement for a certificate of public good. Accordingly, the Public Service Commission has found that the plaintiff possesses all the authorization needed under 30 V.S.A. §111(1). The opinion of the majority does not rest on any error growing out of this finding. As the case stands, it is as if we have a plaintiff, possessing a certificate of public good, which petitions the Public Service Commission for condemnation in connection with a contract as to land on a stream which has not previously been determined to be navigable. The question is whether the Federal Power Commission, by coming on the scene later with its declaration that the Clyde River is navigable, necessarily ousts the Public Service Commission of its jurisdiction. I believe that the state commission having properly entered upon hearing the petition, retained jurisdiction to complete what it had started to do. My reason for so holding would be that there is nothing in the nature of what was sought to be done which could possibly be in opposition to any federal interest. The matter was concerned not with the initiation of a project but with the culmination of a contract under which land is inevitably to be acquired, federal license or no federal license. I am unwilling to assume that proceedings before a state public service commission, with their attendant expense, must automatically come to a dead-end in the circumstances presented by this case. Any “dual system involving the close integration of these powers” cannot be said here to be running into “a futile duplication' of two authori*455ties over the same subject matter.” First Iowa Hydro-Electric Coop. v. Federal Power Commission, 328 U.S. 152, 171, 66 S.Ct. 906, 90 L.Ed. 1143. I am unwilling to say that state-federal relations have degenerated to a point where the jurisdictions of the two cannot coexist in a situation of the sort presented to the commission. At least I am disposed to wait until we have been told so before accepting this conclusion.
In view of the concurring opinion, I cannot leave the question with what has been said.
It is always desirable to keep before us basic concepts. One of these is the legislature’s intent which lies behind a given statutory requirement. Here we are concerned with a certificate of public good. It seems clear that what the legislature intended was this: private property ought not to be taken from a man in the name of the sovereign, i.e., the public, unless the public good is going to be served. To take a man’s property against his will, in the name of the public, where no public good demands it, would be the worst kind of tyranny. It follows that where the landowner, by his own contract has freely bound himself to convey the land in question, all reason for establishing public good has disappeared. Here we have a dam with its appendage, that is, the penstock leading from it, which have been constructed long before the “public good statute” was enacted. The concurring opinion concedes that the existence of the dam and penstock is “secure;” in other words, it is as if they were there by virtue of a certificate of public good, but that this security does not extend to the land which underlies them, even though the utility, long before the public good statute, acquired, by contract, a right to own that land. I am unwilling to give the defendant-landowners the benefit and protection of a position which has been bargained away by them. One asks: What is there to hold a public good inquiry on? The dam and penstock are there secure; conveyance of the land has been promised by contract. To say that the public service commission sought to proceed on “a sort of 'grandfather clause’ technique” is not sufficiently comprehensive. Having taken judicial notice of its records showing a long course of recognition of the utility and its operations — something which is not at hand for this Court — the Public Service Commission’s position may be supported on the broad ground that in view of the contract which antedated the public good statute, it would be a meaningless insistence on a useless act to make a formal public good certificate a prerequisite *456for the proceeding involved in this case. The legislative objective has already been satisfied.