(concurring specially).
I concur in the result but for reasons other than those given in Division III. The ground upon which the decision is made in Division III allows a pipeline company to change the basic nature of its permit. Such an extension of power to privately operated common carrier pipeline companies is improper.
I. The real fighting point between the parties to this appeal is whether the damages were to be measured by defendant’s authority to install a pipeline or pipelines. At trial the court held that because of an ambiguity in defendant’s application the damages were to be measured as though • defendant had authority to install pipelines. This was a vital issue.
Exhibit 10, offered by defendants and excluded by the court, is a decision and order of the Iowa State Commerce Commission issued after statutory hearing. This exhibit can only be construed to mean that the authority issued to defendant was to build a pipeline, singular. For some strange reason the actual certificate of authority was never offered. Be that as it may, Exhibit 10 was sufficient to show defendant was only given a right to construct one pipeline.
The two important paragraphs in the commission’s order read:
“This Commission issued pipeline permits for the construction of an anhydrous ammonia pipeline on April IS, 1968 to Mid-America Pipe Line Company (now MAPCO, Inc., and hereinafter referred to as MAPCO). * * *.
“MAPCO contends that the proposed anhydrous ammonia pipeline will be operated as a common carrier under tariffs filed with the Interstate Commerce Commission subject to the provisions of the Interstate Commerce Act (49 U.S.C.A. § 1, et seq.) The Company also represents that it will be under an enforcible legal duty to operate the pipeline as a common carrier; and that, since it will be constructed and operated as a common carrier in interstate commerce, it will be serving a public use.” (Emphasis added.)
The only time the word pipelines is used in the order is in discussing the general subject. The authority here is granted only for the construction of one line.
II. Therefore the trial court erred. This is true not because defendant could waive an authority already received, but because it had never received any authority to waive. This distinction is important and the case should be placed on the actual facts shown by the record.
The easier route would be to say the condemnor can always waive what it doesn’t need in the particular lawsuit. De Penning v. Iowa Power & Light Co., (1948) 239 Iowa 950, 33 N.W.2d 503, 5 A.L.R.2d 716, allows a condemnor to affirmatively and clearly waive certain rights it has as condemnor. In DePenning the utility sought to waive the right to access by traveling across other portions of con-demnee’s land. The easement abutted on a public highway so the right of ingress and egress was unnecessary. This has been referred to as waiver of incorporeal rights acquired with the easement. Annotation, 5 A.L.R.2d 724. Such waiver is reasonable and this court approved the tactic in mitigation of damages.
A different problem is raised when the condemnor seeks to change the character of the original eminent domain authority *200granted by the Commission. Our statutes, chapter 490, Iowa Code, 1966, and Browneller v. Natural Gas Pipeline Co., (1943) 233 Iowa 686, 8 N.W.2d 474, clearly give the Commerce Commission authority to grant a permit and the power of eminent domain to private companies to build a pipeline or pipelines. This power is carefully restricted by procedural steps including notice and hearing plus fact-finding requirements designed to protect the general public.
If, after compliance with such procedures, the commission grants a permit, the people of Iowa have a right to know what that permit is and the extent and nature of easement to be acquired. This is necessary to the protection and bargaining position of the hundreds of property owners along the easement right of way. Most will sell the easement rights without court procedures.
III.The condemnor should not be allowed to change the character of the easement by waiver of rights which have been affirmatively granted in the order. It is one thing to allow waiver of rights in connection with the manner by which the easement will be implemented. It is quite another to change the character of the easement itself.
Switching from acquisition of an easement for pipelines to an acquisition of an easement for a pipeline would change the character of the easement right. See Browneller v. Natural Gas Pipeline Company, supra, where the complexities of use of the two lines by “looping” to increase capacity, necessity for a reasonable distance between the pipelines for safety purposes and other such complications are discussed.
In Henderson v. Iowa State Highway Commission, (1967) 260 Iowa 891, 897, 151 N.W.2d 473, we said:
“In assessing damages it is not what the condemnor intends to do, but what it acquires the right to do that determines the quantum of damages. Carolina Central Gas Co. v. Hyder, 241 N.C. 639, 86 S.E.2d 458, 460 ; 29A C.J.S. Eminent Domain § 155, page 658.” Unlike the Highway Commission’s authority, defendant’s authority stems from the Commerce Commission after hearing. The authority granted should be fixed.
IV. There would be very real constitutional questions if the commission were to grant a permit which contemplated installation of one pipeline now and an additional line or lines at some indefinite time in the future. For a discussion of such in futuro power see I Nichols on Eminent Domain, 3d Ed., § 4.11(2), p. 561; Central Louisiana Elec. Co. v. Brooks, (La.1967) 201 So.2d 679:
“Reasonable expectation of future needs and a bona fide intention of using it for such purposes within a reasonable time are required to protect the property from condemnation.” 26 Am.Jur.2d, Eminent Domain, § 94, p. 749; 29A C.J.S. Eminent Domain § 92, p. 386.
V. In summary my objection is to this court’s action granting a private condemnor the right to unilaterally change the nature of the easement granted to it by the Commerce Commission. The utility acquiring the right to condemn and the commission should be required to make the authority granted sufficiently specific to inform the property owner at the beginning as to the nature of the taking. Such broad authority to change the substance of the permit is unnecessary to this decision because the easement in its inception was limited to one pipeline.
I concur in all other Divisions of the opinion and the result.
RAWLINGS, J., joins in this special concurrence.