(dissenting).
*82The fallacy of the majority opinion rests upon the erroneous notion that the general statute, section 93-8003, R. C. M. 1947, specifying what orders and judgments are appealable, has application to eminent domain proceedings. This is not the case.
Proceedings in condemnation are governed by special statutory provisions, R. C. M. 1947, see. 93-9901 et seq., and these statutes provide for appeals in such matters.
The statute applicable here is section 93-9905 which provides that before property may be taken in condemnation proceedings it must appear:
“1. That the use to which it is to be applied is a use authorized by law.
“2. That the taking is necessary to such use.
“3. If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use. ’ ’
The same section then continues as follows: “The plaintiff or defendant, or any party interested in the proceedings, can appeal to the supreme court from any finding or judgment made or rendered under this chapter, as in other cases. Such appeal does not stay any further proceedings under this chapter.” The order from which the appeal was taken here contained findings as provided in this section under paragraphs 1 and 2.
It is clear from this section that the words “as in other cases” has to do with the practice or procedure in perfecting the appeal. Unless this is so the entire sentence of which it is a part is rendered absolutely meaningless because in no other case is any provision made for an appeal from findings.
This identical question under statutes identical with, ours came before the circuit court of appeals of the 9th circuit in Van Dyke v. Midnight Sun Mining & Ditch Co., 177 F. 85, 87, and that court reached this conclusion, saying: “The proceeding was under section 207 of chapter 22 of the Civil Code of Alaska, concerning eminent domain, which makes it necessary for the court to find certain facts before condemnation — among *83them: (1) That the nse to which the property is to be applied is a use authorized by law. (2) That the taking is necessary to such use. (3) If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use'.
"It is upon findings so made that there is established a basis for further proceedings. The findings constitute the decision of the court upon the vital question of whether or not the property sought to be taken can be condemned at all. Congress evidently deemed them of great importance, for in the same clause of the Code making findings necessary it provided that:
" ‘The plaintiff or the defendant, or any party interested in the proceedings, can appeal to the United States Circuit Court of Appeals for the Ninth Circuit from any finding or judgment made or rendered under this' chapter as in other cases. Such appeal does not stay any further proceedings under this chapter. ’
"While there may be an appeal from an assessment made by commissioners after damages are assessed, nevertheless this right to have the findings and order of condemnation reviewed by this court is given in plain language. The requirement that the appeal shall be ‘as in other cases’ refers to the practice in the mode of taking the appeal, rather than to cases wherein an appeal may lie. We find, too, that the whole of section 207 of the Code of Alaska, as we have cited it, was taken from the Code of Civil Procedure of Montana, where it can be found in section 7334, title 7, ‘Eminent Domain,’ Rev. Codes Mont. 1907, or section 2214, Codes Mont, adopted in 1895. The Supreme Court of Montana directly construed the statute in State ex rel. Davis v. District Court, 29 Mont. 153, 74 Pac. 200, and held that a defendant had a right of appeal from an order of condemnation made upon findings under the statute referred to, and before damages were assessed * *
The majority opinion stresses the fact that the Yan Dyke case is different from this because an appealable order was entered in that case.
The majority opinion overlooks the fact that the only reason *84the order in question was held to be appealable was because of the section corresponding to our section 93-9905, the reasoning of the court being that the order carried with it a finding of the necessary facts forming the basis of condemnation proceedings and the statute providing for an appeal from such findings.
The holding in the Van Dyke case, supra, was adhered to in the later case of Northern Mining & Trading Co. v. Alaska Gold Recovery Co., 9 Cir., 20 F. (2d) 5.
This court in State ex rel. Davis v. District Court, 29 Mont. 153, 74 Pac. 200, 201, held that there was an appeal from an order of condemnation before damages were assessed under R. C. M. 1947, sec. 93-9905, because the order included a finding of the things necessary under the statute before property may be taken. The court did not hold that the order was appealable under section 93-8003, R. C. M. 1947. It was referring specifically to section 93-9905, when it said: “It is very clear that under this statute the defendant had an appeal from this order.”
So when the majority opinion stresses the fact that an appeal-able order was entered in that case it overlooks the fact that the order was held to be appealable because it contained the findings furnishing the basis for condemnation proceedings and the statute allowed the appeal from findings. This holding was adhered to in Park County v. Miller, 117 Mont. 157, 159 Pac. (2d) 358.
I agree with counsel for both parties that the appeal here taken was proper. It is expressly authorized by the plain wording of section 93-9905.
I disagree with the majority opinion also so far as it throws in for extra measure the proposition that relief cannot be granted on the appeal because of section 93-5305 providing, “nor in cases tried by the court shall the judgment be reversed on appeal for defects in the findings, unless exceptions be made in the court below for a defect in the findings or in a finding. ’ ’
For fifty years the rule has been that this section applies only to a case where the findings omit matters necessary or proper *85to be stated and not to a case as here where the claim is made that the evidence does not support the finding.
The rule was stated in Cobban v. Hecklen, 27 Mont. 245, 70 Pac. 805, 808, where the court said: “Some contention is made by the defendant to the effect that the findings cannot be reviewed here, because the plaintiff did not challenge them as defective; and he invokes sections 1114, 1115, and 1116 of the Code of Civil Procedure [1895, now R. C. M. 1947, sees. 93-5305, 93-5306, 93-5307]. These sections are not applicable. They have to do only with findings which are defective; that is, which omit matters necessary or proper to be stated. Exceptions thus provided for lie on account of deficiencies or omissions, and not for what is contained in the findings. Such is the clear meaning of the sections.”
This holding was adhered to in Ferguson v. Standley, 89 Mont. 489, 300 Pac. 245, 247, where the court said: “As to the easement for the road, defendant first attacks the findings as not supported by the evidence.
“2. Counsel for plaintiff contend that this attack must be disregarded, as defendant did not request findings nor file exceptions to the findings as made, citing sections 9369 and 9370, Revised Codes 1921 [now R. C. M. 1947, secs. 93-5305 and 93-5306], and numerous opinions of this court discussing their effect and announcing the doctrine of implied findings.
“The sections cited deal with absence of findings and defective findings — omissions—while defendant attacks the findings for what they declare. In such case the rules announced in the cited provisions and cases have no application (Cobban v. Hecklen, 27 Mont. 245, 70 Pac. 805), and, on matters on which the court has made direct findings, there is no room for the application of the doctrine of implied findings (Crosby v. Robbins, 56 Mont. 179, 182 Pac. 122). The specifications of error properly raise the question of the sufficiency of the evidence to support the findings.”
The specially concurring opinion of Chief Justice Adair in considering section 93-9005 overlooks the vital language of the *86statute that either party may appeal to the supreme court “from any finding or judgment made or rendered under this chapter”. This language is followed by the words “as in other cases.’’ A clearer legislative declaration of the right of appeal from any finding could not be made.
I think the appeal was properly taken and should be considered on its merits. No useful purpose would be served in discussing the merits here.