(dissenting).
We are compelled to dissent from the conclusions reached by the majority opinion and more specifically from paragraph 5 of the syllabus, and from the special concurring opinion, for the reasons stated herein. The facts appear to be correctly set forth in the majority opinion, as well as the applicable pertinent case law, but, in our view, the case law supports a conclusion opposite to that reached in the majority opinion.
The Constitution of the State of North Dakota authorizes the use of the eminent domain in § 14, which, as is material here, provides as follows:
“Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner.” [Emphasis added.]
This is not a grant of power to the Legislature, but is a limitation upon the Legislature, meaning that the Legislature may not authorize the use of eminent domain except for public use. The public use concept again appears in § 134 of the North Dakota Constitution, which provides as follows:
“The exercise of the right of eminent domain shall never be abridged, or so construed as to prevent the legislative assembly from taking the property and franchises of incorporated companies and subjecting them to public use; the same as the property of individuals; and the exercise of the police power of this state shall never be abridged, or so construed as to permit corporations to conduct their business in such a manner as to infringe the equal rights of individuals or the general well-being of the state.”
*534It is abundantly clear that the authority granted to exercise the power of eminent domain is limited by the Constitution to the taking of property for public use. The reference to public use in §§ 14 and 134 of the North Dakota Constitution obviously, and out of necessity, must refer to public use to the inhabitants of the State of North Dakota, otherwise this provision would be invalid.
In Adams v. Greenwich Water Co., 138 Conn. 205, 83 A.2d 177 (1951), the court said:
“It is true that no state is permitted to exercise or authorize the exercise of the power of eminent domain except for a public use within its own borders. [Citations omitted.]”
It continued by saying that such taking will not be prevented because it will also serve a public use in another jurisdiction.
“If the taking is for a public use which will provide a substantial and direct benefit to the people of the state which authorizes it, it is a proper exercise of the power of eminent domain even though it also benefits the residents of another state.”
The North Dakota Supreme Court, in Sheridan County v. Davis, 61 N.D. 744, 240 N.W. 867 (1932), in paragraph 1 of the syllabus, said:
“A grant of power to a governmental subdivision to exercise the right of eminent domain should be strictly construed.”
In the body of the opinion, the court quoted from Lewis on Eminent Domain (3d ed.) § 388:
“. . . all grants of power by the government are to be strictly construed, and this is especially true with respect to the power of eminent domain, which is more harsh and peremptory in its exercise and operation than any other.”
If the power of eminent domain is to be strictly construed when it involves a grant to a governmental subdivision, it would necessarily follow that a similar type of grant or power given to a private or public corporation must also be strictly construed.
We must assume that the Legislature was aware of the limitations in § 14 of the North Dakota Constitution, which limits the taking of property by eminent domain to those instances where it will serve a public use, when it enacted Chapter 32-15, North Dakota Century Code, which sets forth how eminent domain may be exercised and the purposes for which it may be exercised.
Section 32-15-02(10), NDCC, provides as follows:
“Subject to the provisions of this chapter, the right of eminent domain may be exercised in behalf of the following public uses:
“10. Oil, gas, and coal pipelines and works and plants for supplying or conducting gas, oil, coal, heat, refrigeration, or power for the use of any county, city, or village, or the inhabitants thereof, together with lands, buildings, and all other improvements in or upon which to erect, install, place, maintain, use, or operate pumps, stations, tanks, and other machinery or apparatus, and buildings, works, and plants for the purpose of generating, refining, regulating, compressing, transmitting, or distributing the same, or necessary for the proper development and control of such gas, oil, coal, heat, refrigeration, or power, either at the time of the taking of said property or for the future proper development and control thereof; ”
The majority opinion construes subsection (10) as authority for Square Butte to exercise the power of eminent domain. The special concurring opinion goes further and reasons that the enumerated and itemized activities stated in subsection (10) are declared to be public uses by specific legislative action and as such the landowner now must assume the burden to establish that the contrary exists. With this concept we cannot agree. In our view, the Legislature merely provided that only those activities itemized, enumerated, or listed in subsec*535tion (10) may be the basis for exercising eminent domain provided a public use would result. The Legislature did not say they were, nor did it make these activities a public use per se, but said “may be exercised in behalf of the following public uses.” Thus the taking would be permissible only if the public use were to result. There is, however, a further question whether the underscored language is an additional limitation requiring that the public use be to or for the benefit of the inhabitants of the city or county wherein the property was located and was taken. If the power of eminent domain is to be strictly construed, for which there is reliable authority, a conclusion that the benefit must be to the inhabitants wherein the land was located and taken must be favored. This precise question has not been raised, but it is a question which is deserving of legislative attention and action. If this question is required to be resolved by judicial interpretation, the court must and should take into account the admonition that such power is to be strictly construed and limit the use of eminent domain, rather than expand upon such power.
The term “public use” is subject to judicial interpretation and the courts have held that such term is the equivalent of “public benefit” or “public welfare.”
Nichols on Eminent Domain, 2A, § 7.2[2], states as follows:
“Judicial opinion which follows this broad concept considers that the narrow doctrine has been repudiated and is no longer the prevailing view. ‘Public use’ is considered ‘public benefit’ and it is not considered essential that the entire community or even any considerable portion thereof should directly enjoy or participate in any improvement in order that it constitute a public use. This is true whether the court is proceeding under the narrow concept or the broad concept. It has been said that the requirements, as to public use, for a law embracing the taking of land are as follows:
“ (1) That it effect [sic ] a community as distinguished from an individual;
“ (2) That the law control the use to be made of the property;
“ (3) That the title so taken be not invested in a person or corporation as a private property to be used and controlled as private property; and
“ (4) That the public reap the benefits of public possession and use and that no one exercise control except the public.”
The same authority, in § 7.22, gives the following analysis of the concept of public use:
“A definition of public use which, while not concise, is consistent in all particulars with the weight of judicial authority is, accordingly, as follows:
“It is a public use for which property may be taken by eminent domain,
“ (1) To enable the United States or a state or one of its subdivisions or agencies to carry on its governmental functions, and to preserve the safety, health and comfort of the public whether or not the individual members of the public may make use of the property so taken, provided the taking is made by a public body;
“ (2) To serve the public with some necessity or convenience of life which is required by the public as such and which cannot be readily furnished without the aid of some governmental power, whether or not the taking is made by a public body, provided the public may enjoy such service as of right;
“ (3) In certain special and particular cases, sanctioned by ancient custom or justified by requirements of unusual local conditions, to enable individuals to cultivate their land or carry on business in a manner in which it could not otherwise be done, if their success will indirectly enhance the public welfare, even if the taking is made by a private individual and the public has no right to service from him or enjoyment of the property taken.”
Whatever may be embraced in the term “public use” or in the various shades of its meaning, the use, benefit, or welfare must be for the inhabitants of the State as a minimum requirement and not to some oth*536er State or country where the eminent domain power is exercised by a private corporation (see Adams, supra), as distinguished from the exercise of such power by the federal government.
The benefits to the public, in our view, may not be remote, indirect, incidental, or speculative to satisfy the constitutional public use requirement. They must be apparent and direct.
In Gralapp v. Mississippi Power Company, 280 Ala. 368, 194 So.2d 527, 531 (1967), the Alabama Supreme Court said:
“Of course, it is a fundamental principle in the law of eminent domain that private property may not be condemned unless it is to be subjected to a recognized public use, affording benefits which are not vague, indefinite or restrictive.”
The court also said:
“. . . the right to condemn in this case cannot be denied because public uses in another state would be promoted also.”
The Alabama court also quoted with approval from an earlier Alabama decision, as follows:
“It is equally clear that this right is not to be denied where public uses are to be subserved in the state granting condemnation, because in connection therewith, public uses in another state may be likewise promoted. While a state will take care to use this power for the benefit of its own people, it will not refuse to exercise it for such purpose, because the inhabitants of a neighboring state may incidentally partake of the fruits of this exercise.” [Underscoring ours.]
We are not dissenting because some inhabitants of another state will be receiving benefits from this transmission line, but rather because the benefits to the inhabitants of this state will be incidental, secondary, and will not meet the requirements of law, nor do they meet the public use concept.
The direct current transmission line from Center, North Dakota, to Duluth, Minnesota, does not meet the pertinent conditions summarized by Nichols or by case law, as stated above, cited in the majority opinion and mentioned later herein.
We agree with the majority opinion through Part II, and particularly the last two paragraphs of Part II:
“From these cases, it appears that the following elements must be present for a public use to exist in the state where the property sought to be condemned lies. First, the public must have either a right to benefit guaranteed by regulatory control through a public service commission [Bokma]1 or an actual benefit [Gralapp]2. Second, although other states may also be benefited, the public in the state which authorizes the taking must derive a substantial and direct benefit [Greenwich Water]3, something greater than an indirect advantage [Grover Irrigation]4. Third, the public benefit, while not confined exclusively to the state authorizing the use of the power [Greenwich Water], is nonetheless inextricably attached to the territorial limits of the state because the state’s sovereignty is also so constrained [Clark5 and Grover Irrigation]
“To dispose of this case, we must determine whether the benefits alleged by Square Butte provide, either singly or in unison, a substantial and direct benefit to North Dakota.” [Footnotes added.]
In applying the foregoing principles of law to the facts in the instant case, we are compelled to reach a conclusion opposite to that of the majority opinion. We cannot recognize that the benefit to the North Dakota public is direct or substantial. In our view, the benefit, if any, is remote, *537indirect, incidental, and speculative, which does not constitute a sufficient “public use” for the exercise of eminent domain.
In the Gralapp case, supra, the Alabama court observed that the evidence established that the electricity would flow in both directions along the lines sought to be constructed. It then said,
“We cannot agree there would be no benefits to the public in Alabama from the construction and use of this power line.”
It must be observed that there is, however, a major distinction between the Gralapp case and the case under consideration. In the case under consideration, the transmission line is DC and will not be converted to AC until it reaches Duluth, Minnesota. Its use, if any, in North Dakota would be incidental rather than direct. The line could not be usefully “tapped” in North Dakota. We have here the reverse of the Gralapp case in this instance with the direct or primary benefit to Minnesota residents and indirect benefits, if any, to North Dakota residents.
In Montana Power Co. v. Bokma, 153 Mont. 390, 457 P.2d 769 (1969), the court had under consideration condemnation proceedings instituted by an electric public utility to acquire a right of way easement across defendant’s land for the purpose of constructing an electric power transmission line which was to provide electric power and service to a single customer. The transmission line, however, was available to any other customer who would wish to use it. The Montana Supreme Court held that the acquisition was for a public use inasmuch as the utility could be compelled to serve any member of the public from the proposed line. The court quoted approvingly from 2A Nichols on Eminent Domain (3d ed.) § 7.522[3] as follows:
“As long as every member of the public has an equal right with all others, on equal terms, to the use of the power produced, it matters not that every person is not actually benefited thereby.”
In the instant case, we have a DC line which would be of no avail until the direct current had been changed to AC, which does not take place in North Dakota but takes place at Duluth, Minnesota, from where the energy would be filtered back westward.
The Wyoming Supreme Court in Grover Irrigation & Land Co. v. Lovell a Ditch, Reservoir & Irrigation Co., 21 Wyo. 204,131 P. 43 (1913), had under consideration a case involving the diversion and appropriation of water in Wyoming for the irrigation of land in Colorado. The court held that the benefits which would be available to Wyoming were indirect and remote and were not sufficient to justify the exercise of the power of eminent domain.
The cases cited in the majority opinion, in our view, support an opposite conclusion than that reached by the majority.
The majority concludes that the agreement evidences a reasonable probability that Minnkota’s customers in North Dakota will receive power from the Square Butte project. A reasonable probability is not sufficient, in our view, it must be a certainty. The. majority opinion also concludes that there are other incidental benefits in terms of power availability and cost savings to North Dakota. Case law has repeatedly said that incidental benefits are not sufficient, there must be direct benefits in order to justify the taking of property by eminent domain. The majority opinion concludes by stating:
“Because of the cumulative effect of the increase in reserve and emergency supplies, of the stabilizing effect of the DC line on the existing AC system, of the existence of the options and the likelihood that Minnkota will exercise its options to receive power from Square Butte after 1985, of the lower cost of that power, and of certain incidental benefits, we disagree with the trial court’s conclusion that Square Butte has failed to establish a public use.” [Emphasis added.]
These conclusions are not in accord with the principles of law earlier announced in the opinion. The mentioned options are not to be exercised by the inhabitants of North Dakota, and do not qualify as a direct benefit to North Dakota, nor does the “likeli*538hood” that Minnkota will exercise its option satisfy any requirement that the benefits be direct and not incidental.
The majority opinion puts the North Dakota consumer in the position of going to Midcontinent Area Power Pool (MAPP), of which Minnkota and MP&L are members, with hat in hand and asking, “Please, may we have some of our energy.” This is the picture after North Dakota coal has been converted into electric energy, in North Dakota, and then transmitted directly to Duluth, Minnesota, by a direct current line. If the transmission lines were AC, the objection would not be as great because the line could be “tapped” and transformers could be installed and energy could be used in North Dakota, but as it is now no energy can be available to North Dakota until it has been converted to AC at Duluth and then only as it is filtered back into transmission systems in Minnesota, which may or may not bring the energy back to North Dakota. The majority opinion permits pirating North Dakota resources and land primarily for the benefit of persons other than the inhabitants of the State of North Dakota. The benefits to the public (inhabitants of North Dakota, in this case) to satisfy the constitutional public purpose should be concomitant with the transmission of the energy on the completed line, and should be apparent rather than obscure or dependent upon a future contingency.
Square Butte was designedly created as a North Dakota corporation for the purpose of building an electrical energy, DC, transmission line from Center, North Dakota, to Duluth, Minnesota. Square Butte would not control the electrical energy which is transmitted over the DC line, particularly after it reaches Duluth, Minnesota, its point of destination, where it will be converted into AC.
We thus have a situation where the con-demnor is in no position to assure that the electrical transmission line will have a public use or benefit for or to the North Dakota inhabitants. The benefit, if any, that will result to any North Dakota inhabitants would come from the electrical energy which may filter back into the North Dakota network in the eastern part of the State. The benefits so obtained would be incidental, rather than direct.
This dissent does not imply that Square Butte may not transmit the energy as proposed but merely concludes that Square Butte may not employ or rely upon the power of eminent domain, a quasi-governmental function, to acquire the necessary leases or easements to accomplish this.
We would affirm the judgment of the trial court.
. Montana Power Co. v. Bokma, 153 Mont. 390, 457 P.2d 769 (1969).
. Gralapp v. Mississippi Power Company, 280 Ala. 368, 194 So.2d 527 (1967).
. Adams v. Greenwich Water Co., 138 Conn. 205, 83 A.2d 177 (1951).
. Grover Irr. & Land Co. v. Lovella Ditch, R. & Irr. Co., 21 Wyo. 204, 131 P. 43 (1913).
. Clark v. Gulf Power Company, 198 So.2d 368 (Fla.App.1967).