Stacher

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We invited further consideration of two questions — first, Does the complaint state sufficient facts upon the issue of the necessity for the taking? and, second, Does the statute authorize the taking of water for electric power, light and heat purposes?

In addition to what is said in the former opinion, it may not be amiss to make some further observations upon these two questions.

First, as to the question of necessity. Section 1241, Code of Civil Procedure, provides, as we have seen, that — "Before any property can be taken, it must appear: 1. That the use to which it is to be applied is authorized by law; 2. That the taking is necessary to such use." The point urged is that the complaint does not allege facts sufficient to present the issue of necessity; that the averments do not meet the requirements of the law without showing: 1. That the wants and needs of the people require the production and supply of electricity in excess of the present supply; 2. That the present equipment controlled by appellant is insufficient to meet such needs; 3.…

This is an action to condemn certain riparian rights. A general and special demurrer to the third amended complaint was interposed by certain defendants and sustained by the court without leave to amend. Plaintiff appeals from the judgment. There are twenty-five separate causes of action involving the rights of as many different and separate riparian owners. Three appeared and had judgment, who will hereinafter be referred to as defendants. Each separate cause of action is couched in substantially the same language and the attack upon one may be treated as an attack upon the other two. From the complaint it appears that plaintiff was incorporated under the laws of this state in January, 1907, "for the term and duration of fifty years from the date of its incorporation, and is now in charge of the public use hereinafter *Page 413 mentioned, for which the property hereinafter described is sought to be taken." Defendants contend that the complaint fails to state facts showing that the use is a public use or that plaintiff is in charge of a public use or that the taking of the property is necessary to such use; also, that the allegation of the complaint that plaintiff is the owner of…