concurring: Our statute, in permitting water-powers to be condemned for public use, withdraws from the effect of the law any water-power which is being used or held to be used or to be developed for use in connection with or in addition to any power actually being used for public service,” etc.
There is evidence in the record tending to show that defendant is the riparian owner of land on one side of G-reen Eiver, where there is a considerable fall in the stream, giving promise of a good water-power, if properly developed. The officials of the company testify, further, that *480defendants purchased and now bold this property with, a view to aid their power already developed, and now being used under a charter for the benefit of the public; that they have great need of such undeveloped power and propose to utilize the same as contemplated and provided by the statute.
Whether they can carry out their purpose and utilize this power in substantial aid of the power already developed, and without unwarranted interference with the rights of plaintiffs, who own along the opposite bank, is, in my opinion, a mixed question of law and fact, and, on the record, requires that the issue be submitted to the jury.