(concurring specially)-
I concur in the results, and in the syllabus, but not in everything said in the opinion authored by the Chief Justice, and therefore deem it necessary to state my reasons. When this court states, in overruling a trial court, that on the entire evidence it is left with a definite and firm conviction that a mistake has been made, I have an uneasy feeling. In a vast majority of cases where Rule 52(a), N.D.R.Civ.P., is applicable, we have said, and the Rule states:
“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”
In Kleinjan v. Knutson, 207 N.W.2d 247, 249 (N.D.1973), after referring to the above provision from Rule 52(a), .we stated:
“It follows that if we are to apply this rule, we must apply as a corollary the rule that is applied in jury cases when the sufficiency of the evidence to support the verdict is questioned, and that is that in determining the sufficiency of the evidence to sustain the verdict (here, judge’s findings) the evidence must be viewed in the light most favorable to the verdict. Armstrong v. Miller, 189 N.W.2d 688 at 691 (N.D.1971); Gleson v. Thompson, 154 N.W.2d 780 at 786 (N.D.1967); Degenstein v. Ehrman, 145 N.W.2d 493 at 503 (N.D.1966).”
See also, Trinity Builders, Inc. v. Schaff, 199 N.W.2d 914, 917 (N.D.1972), and, for the application of the same principle even before Rule 52(a) existed, James River Nat. Bank v. Weber, 19 N.D. 702, 124 N.W. 952 (1910), at syllabus 1.
In the instant case, when I read the trial court’s findings of fact and review the evidence only to determine whether there is substantial evidence to support each of such findings, I am not left with the definite and firm conviction that a mistake has been made in any of the findings. In addition, the appellant failed to directly attack any specific finding of fact and we are, therefore, only justified in reviewing them generally. See syllabus 1 of Sorenson v. Olson, 235 N.W.2d 892 (N.D.1975). Only when I examine the trial court’s conclusions of law do I find that a mistake has been made. The trial court made the following conclusions of law:
“1. That the plaintiff, Square Butte, has wholly failed to sustain its burden proving public use and the Complaint of the plaintiff is hereby dismissed in all things, with prejudice, and with costs to the defendants;
“2. That any association of Square Butte with power pools and energy backups is not direct enough to support requirement of public use;
“3. That Square Butte will not supply electrical power to the citizens of North Dakota;
“4. That the plaintiff has established the necessity for the taking of the easements as to the route selected and would be entitled to the right of eminent domain on this question if public use had been established;”
In its memorandum opinion the trial court shows that it relied primarily upon the early Wyoming case of Grover Irrigation and Line Company v. Lovella Ditch, Reservoir and Irrigation Company, 21 Wyo. 204, 131 P. 43 (1913), and the following statement from Nichols, Eminent Domain, 3d ed., Vol. 1, Section 2.111:
“The power of eminent domain in any sovereignty exists only for its own purposes. The fundamental principle which forms the base upon which the power rests does not permit the exercise of the power for purposes other than to enable the state to effect its own proper ends and the policy of its laws.”
Neither the Wyoming decision nor the Nichols statement are inconsistent with a reversal of the judgment entered in this case. The concept of public use is, first of all, a matter to be determined by legislation *532and, where the Legislature has declared a particular use to be a public use, the presumption is in favor of that declaration and the courts will not interfere unless the use is clearly and manifestly not a public use. Some courts have held that they can interfere only if the legislative determination of public use is arbitrary or unreasonable, or if it was induced by fraud, '■ollusion, or bad faith, or if it is a perversion of the power of eminent domain. “The role of the judiciary in determining whether the power of eminent domain is being exercised for a public purpose has been said to be an exceedingly narrow one.” 29A C.J.S. Eminent Domain, § 30, at 258. See generally, 29A C.J.S. Eminent Domain, § 29, “Necessity That Use Be Public,” § 30, “Determination of Character of Use,” and § 31, “What is a Public Use.” Also, Annotation in 90 A.L.R. 1032.
North Dakota has not, in its Constitution, by statute, or judicial precedent, defined in any limited manner the nature, quantity, or quality of the benefit which must be shown to result to North Dakotans before the right of eminent domain may be exercised. The Legislature has defined eminent domain as the right to take private property for public use (§ 32-15-01, NDCC). The public uses for which eminent domain may be exercised are itemized in § 32-15-02, NDCC, and specifically include “ * * * power transmission lines * * *
I would agree with the trial court where, in its memorandum opinion, it said: “It is the belief of this Court that the legislature should re-examine the powers of eminent domain which it has granted to a number of private enterprises, thereby subordinating the right of its citizens.” I do not understand why, after making that statement, the court proceeded to diminish the power itself rather than wait for the Legislature to do so.
At the time our eminent domain rules were being written, our greatest concern related to the bolstering of the State’s economy. The public welfare would have been assumed to be benefited by anything which would enhance the opportunity to market our natural resources and excess energy. Now we realize that economic welfare must be balanced against conservation of natural resources and the protection of the environment. Realizing that the energy situation could well be of crisis proportions in the future, and realizing further that it is of national concern and not controllable within the borders of any one State, future legislation should consider the impact on interstate commerce and the likelihood of Federal takeover if the States adopt too provincial an attitude. Even in the matter of costs recoverable against the condemnor, our interests are better served by allowing State courts to retain jurisdiction rather than abdicating and allowing Federal takeover.
It is pertinent to examine a few of the cases which have revolved around the definition of “public use.” The Wyoming Grover Irrigation case, supra, was decided in 1913 and involved the exportation of water from the State of Wyoming. From a philosophical point of view, would anyone have expected semi-arid Wyoming (like semi-arid North Dakota) to reach any other result? It will be interesting to see whether Wyoming, or any other semi-arid State, strictly adheres to that ruling should the question arise as to the exercise of the right of eminent domain to provide for the exportation of coal by slurry pipeline. There is a greater benefit to Wyoming (and to North Dakota) to retain State water than to export it. It is perhaps a greater benefit to Wyoming to export its coal than to process it into gas or electrical energy, polluting its air in the process, and then export clean energy.
The Territory of Alaska decided an interesting case in 1926 — Alaska Gold Recov. Co. v. Northern M. & T. Co., 7 Alaska Reports 386. After a thorough examination of the holdings, both in the Federal and State courts, the Territorial Court concluded that the term “public use” had received enlarged scope and meaning; that the test was no longer confined to use by the public, but use for the public welfare. The opinion decided that economic and other benefits to the inhabitants justified the use of the right of *533eminent domain to facilitate the mining of gold in Alaska.
Two additional cases require comment to illustrate the complexity of the term “public use.” The United States Supreme Court in Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954), discussed the question of whether the acquisition of private property in a Washington, D.C. substandard housing and blighted area, for redevelopment and resale, constituted a public use. The court said:
“We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive. See Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424, 72 S.Ct. 405, 407, 96 L.Ed. 469. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.”
Also, in a similar case in Minnesota— Housing and Redevelop. Auth. v. Minneapolis Met. Co., 259 Minn. 1, 104 N.W.2d 864, 874 (1960), involving the taking of the Metropolitan Building for the urban redevelopment project known as Gateway Center Urban Renewal Plan, the taking was allowed. The court said:
“If it appears that the record contains some evidence, however informal, that the taking serves a public purpose, there is nothing left for the courts to pass upon.”
Applying these broad principles I find that the North Dakota Legislature has authorized the use of the right of eminent domain for all power transmission lines, and those who challenge a taking for that purpose on the ground that it is not for public use must carry the burden of proof. The trial court, in conclusion # 1, held that the burden was on the plaintiff and, in this, there was error as a matter of law.
The trial court’s conclusion # 2 imposed a requirement that the benefit would have to be “direct enough” to support the requirement of public use. There is no law supporting the conclusion that indirect benefits do not support public use in this State.
Conclusion # 3 is in contradiction to the facts. It was uncontradicted in the testimony that, within reasonable assurance in the future, power will be supplied over this transmission line to citizens of North Dakota. The conclusion is therefore erroneous.