concurring in result.
I concur in the result reached by the majority opinion reversing the judgment. I have doubts concerning the standing of Traill to challenge Sections 24-01-42 and 21-04-43, N.D.C.C., or whether it has waived the right to question the constitutionality of the statutes by its failure to raise the constitutional question at the earliest opportunity. I would therefore prefer to leave for another day the issues of whether the statutes constitute reasonable land-use regulations not requiring compensation and whether or not those statutes violate constitutional guarantees of equal protection. I recognize that the issues of standing or waiver were addressed only peripherally by the parties and therefore not at all by the majority opinion.
As the majority opinion observes, Traill obtained the easements from private landowners in 1971 and 1972. Traill did so without requesting the Commissioner’s consent for the location of the water line except where the line crossed under the highway. The facts were submitted to the trial court by stipulation of the parties and we are left to speculate whether the failure of Traill to request the permission of the Commissioner was due to its belief that the statute is unconstitutional; that it was simply unaware of the statutory requirement; or that it was aware of the statutory requirement but chose to not request permission in the belief that it would not be granted and that if the occasion arose in which the highway was to be widened the statute would be challenged as to its constitutionality at that time.
My concern as to Traill’s position in this case is perhaps exemplified by the discussion in the majority opinion of the first issue, i.e., whether the statutes involve a reasonable regulation or a taking. The opinion appears to address the issue from that of the landowner and concludes that because the statutes do not prohibit all or substantially all reasonable uses of the regulated property as a whole, decisions such as First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. -, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), do not apply. Although I might agree with that conclusion insofar as the landowner’s position is concerned, it is not the landowner but rather the easement owner who is challenging the statutes. The statute does prohibit all use by utility easement owners in the area proscribed.1
But Traill cannot invoke the rights of the farmer-landowner from whom the easement was acquired. 16 C.J.S., Constitu*350tional Law, § 66(a). As an example, in its brief Traill argues that “The initial construction of a water line will necessarily prevent farmers from cultivating crops from the edge of the highway right of way to the location of the water line during construction. If the line is built 40 or 50 feet further into each farmer’s field, this may result in substantial crop loss. Furthermore, additional crop loss will result whenever the water line is in need of maintenance as equipment must be moved deeper into the farmer’s field. Placement of utility poles create even more problems for farmers who must farm around these obstructions. As a consequence, farmers are reluctant, if not totally unwilling, to grant easements to utilities except along the borders of their fields.”
However, a party may not challenge the constitutionality of a statute on the ground that someone other than itself might be harmed. E.g., First Bank of Buffalo v. Conrad, 350 N.W.2d 580 (N.D.1984). Traill may not, therefore, raise the concerns of the farmer-landowners of this State who are not parties to this action, particularly the argument relative to utility poles since the easements in question involved buried water lines.
Although the argument may appear to be tailored to Traill’s concerns, i.e., that farmers are reluctant to grant easements to utilities except along the borders of their fields and this statute would force Traill to acquire easements farther into fields when farmers are reluctant to grant easements to utilities except along the borders of their fields, that argument is not persuasive in this instance because we do not know if the Commissioner would have denied the permits if Traill had requested them pursuant to the statute. Furthermore, Traill, as the result of legislative enactment, has the power of eminent domain. Sec. 32-15-02, N.D.C.C. In any event, it appears Traill’s argument in this regard is more properly addressed to the legislative branch of government.
Nor is Traill in a position to argue, as it does, that the statutes deny due process because of lack of adequate standards limiting the Commissioner’s discretion. Traill did not apply for permission to install the line and therefore the standards or lack thereof limiting the Commissioner’s discretion in granting or denying the permit are not significant to Traill’s status in this case. See State Dept. of Nat. Resources v. Olson, 275 N.W.2d 585 (Minn.1979).
Although this court has previously held that one who seeks to enjoy the benefits under a law cannot, in the same proceedings, question the constitutionality of the Act under which he so proceeds, even in the event that benefits are ultimately denied [Quist v. Best Western Intern., Inc., 354 N.W.2d 656 (N.D.1984)], that holding should not apply where the statute, as here, creates a requisite to certain action such as the installation of an underground water line within 100 feet of the center of a highway. The statute prohibits the installation of a line without the approval of the Commissioner. Not only should a party who requests permission and is denied be entitled to challenge the constitutionality of that law at that time, such action should be a requisite to a challenge. The general rule is that a constitutional question must be raised at the earliest opportunity or it will be deemed waived. 16 Am.Jur.2d., Constitutional Law, § 206. The proper time to raise the issue was at the time the lines were installed contrary to the statute.
SCHNEIDER, District Judge, concurs.
. Presumably there would be little question that Traill was entitled to compensation if it acquired an easement from a private landowner prior to the time Section 24-01-42 was enacted and was subsequently required to remove its water lines. On the other hand, where utility lines are installed on public rights-of-way, the State may order the utilities to relocate such facilities at the expense of the utilities. Northwestern Bell Telephone Company v. Wentz, 103 N.W.2d 245 (N.D.1960). North Dakota has, however, allowed reimbursement for those expenses. Id.; Sec. 21-01-41, N.D.C.C. Here, the easement was acquired prior to the time the State acquired any right-of-way.