In State ex rel. v. Toledo, 48 Ohio St. 113, 26 N. E. 1061, 11 L. R. A. 729, it was held that the supplying of municipal corporations and their citizens with natural gas is a public use or purpose for which the taxing power may be constitutionally exercised; and in the course of the opinion the court observed that, though that was a case of taxation and not of eminent domain, yet it was to be considered upon the principles governing eminent domain. If supplying the public with water or gas is so manifestly a public use as not to be questioned, upon what just principle can it be held that supplying the public with electric light is not a public use? In Brown v. Gerald, 100 Me. 351, 61 Atl. 785, 70 L. R. A. 472, 109 Am. St. Rep. 526, the de fendant was empowered to generate, sell, distribute, and supply electricity for lighting, heating, and manufacturing purposes in certain towns, and to take by the exercise of the right of eminent domain land for the establishment of its plant, which the court held embraced its line of poles and wires. The case was for an injunction to restrain the erection of the line across the plaintiff's farm. The defendant contended that it had the right to take the plaintiff's land for the purpose of furnishing an electric current for lights, whether it could do so for supplying power for manufacturing purposes or not. The court said: "We think it should be conceded that the taking of land for the purpose of supplying the public, or so much of the public as wishes it, with electric lighting, is for a public use." And also held that: "If the company exercised the right actually for lighting purposes, it might also use the property thus obtained for other incidental purposes, as has been many times held." But the court found under the testimony taken in the case that the land was being taken to enable the company to deliver electrical power to a manufacturing company under a contract, and that the alleged public use was a mere cover for a private enterprise, and the injunction was for that reason only sustained. In Walker v. Shasta Power Co., 160 Fed. 856, 87 C. C. A. 660, 19 L. R. A. (N. S.) 725, the

for distribution and sale to the public on equal terms is a public enterprise." And in Minnesota Canal and Power Co. v. Koochiching Co., 97 Minn. 429, 107 N. W. 405, 5 L. R. A. (N. S.) 638, it was said: "Electric lighting is universally recognized as a public enterprise, in aid of which the right of eminent domain may be invoked." And in Canal Power Co. v. Pratt, 101 Minn. 212, 112 N. W. 395, 11 L. R. A. (N. S.) 105, it was held that the term "public business" includes the construction of works for supplying the public with light, heat, and power. In New Central Coal Co. v. George's Creek Co., 37 Md. 563, it was held, through Chief Judge Alvey, that the Legislature may authorize the condemnation of private property by a mining company for the construction of a railroad to bring coal from its mines; "such use being of a public nature." And in N. Y. Mining Co. v. Midland Co., 99 Md. 506, 58 Atl. 217, that decision was confirmed; Chief Judge McSherry saying that a mining company could condemn land for the construction of a connecting railroad, though it had no motive power of its own, and he pointed out that such use was a public use, for the reason, among others, "that other railroad companies or mining companies would have the right to run over it and to use it in the method prescribed by the statute." The courts of Pennsylvania, as observed by Judge Alvey in New Central Coal Co.'s Case, supra, have very fully sustained "the right to take by compulsory process land for the construction of lateral railways to coal mines, as being for public use, and therefore within the power of the eminent domain," and this notwithstanding that the test for determining a public use which we adopted in the Arnsperger Case, 101 Md. 247, 61 Atl. 413, 70 L. R. A. 497, was the test applied in Farmers' Market Co. v. P. & R. R. R. Co., 142 Pa. 586, 21 Atl. 902, 989, upon which case the Arnsperger Case largely was determined. Even in the cases cited in the appellee's brief as against the validity of the power in this case, there are to be found expressions going far to sustain the view that the supplying of electric light, heat, or power to the public is a public use. Thus in Fallsburg v. Alexander, 101 Va. 110, 43 S. E. 194, 61 L. R. A. 129, 99 Am. St. Rep. 855, the court held that the interest of the public, if any, under the language of the charter was too vague and indefinite to support the power of eminent domain, but also said: "We do not mean to say, however, that under no conditions can the right of eminent domain be conferred by the Legislature in furtherance of the establishment of plants for the generation of electric power, or other power, light, or heat, where public necessity requires it and the public use is apparently safely guarded. To meet industrial progress, new conditions, and the ever increasing necessi

ties of society, the courts have gone very far in sustaining legislation conferring the franchise of eminent domain, and it is not necessary for us in this case, if we were so inclined, to question the soundness of the policy sustained in those decisions."

We think that the language of the appellee's amended charter amply safeguards the right of the public to the use of the electric current to be conveyed over the pole line, and that we are well within the principles laid down in the Arnsperger Case in holding that the right of eminent domain may be exercised by the appellee for the purposes indicated in its amended charter.

But it is further contended by the appellant that some of the purposes of the appellee as set forth in its charter cannot be held to be public uses, and therefore the power of eminent domain cannot be exercised at all. But this is only when a private use is combined with a public use in such a way that the two cannot be separated. 1 Lewis on Eminent Domain, § 206. The case of Harlan v. Centralia Elec. Power Co., 42 Wash. 633, 85 Pac. 344, 7 L. R. A. (N. S.) 198, states what we deem to be the true doctrine in this respect. There the court said: "The objects for which the corporation was formed, as recited in its articles, are many and somewhat varied, and those of a public and quasi public nature are commingled with those that are purely private. * * The relator contends therefore, to permit it to condemn property at all, is to permit private property to be taken for a private use. There are cases which maintain the doctrine that a statute authorizing the condemnation of property for uses, a part of which only are of a public nature, is in violation of the rule that private property cannot be taken for private use, and hence cannot be enforced. ** If

a private use is combined with a public one in such a way that the two cannot be separated, then, unquestionably, the right of eminent domain could not be invoked to aid the enterprise; but it has been said, and it seems to us that it is the better reason, that where the two are not so combined as to be inseparable, the good may be separated from the bad, and the right exercised for the uses that are public. * While the exercise of the right of eminent domain must be guarded jealously so that the private property of one person may not be taken for the private use of another, after all is said and done, the power to prevent property taken for a public use from being subsequently devoted to a private use must rest rather in the supervisory control of the state, than in caution in permitting the exercise of the power. Property taken for a public use by a corporation organized solely to promote a public business may be as easily diverted by it to a private use as it may by one having both private and public objects." And in Lake Koen Nav. Co. v. Klein, 63 Kan. 485,

reason for denying to a private corporation the power of eminent domain for the promotion of a public use, because by its charter it is also authorized to engage in a private enterprise, than to deny to a private person the same power, because he is inherently endowed with the same authority."

But it is further contended by the appellant that there is no provision of law determining the necessity of the taking, either by the jury of inquisition or by a court of competent jurisdiction, and the taking therefore is without due process of law, both under the Constitution of the state and the fourteenth amendment to the Constitution of the United States. But in New Central Coal Co. v. George's Creek Coal Co., 37 Md. 565, speaking of the necessity of the taking, the court said: "It is proper that these questions be referred exclusively to the court specially clothed with jurisdiction and power to pass on the propriety of the inquisition of condemnation." And in N. Y. Mining Co. v. Midland Co., 99 Md. 513. 58 Atl. 217, Judge McSherry said: "There could be no more conclusive reason for refusing to confirm the inquisition than the nonexistence of a necessity for an acquisition of the land sought to be condemned. Whether such a necessity did in point of fact exist was obviously a question for the court below to determine upon the objections filed before the inquisition could be confirmed." The case before us has not reached a stage for the consideration of that question. As was said in New Central Coal Co.'s Case, supra: “In the delegation of the power is implied the condition that it shall only be exercised when, and to the extent actually found necessary. This rule, however, may, and generally does, involve questions of engineering and other questions that a court of equity cannot undertake to determine."

Again, it is contended that the appellee, even if it has a valid power of eminent domain under section 366 of article 23, cannot take both a fee simple, or the use in fee simple, of the parcel described in the application and warrant, and also an easement to cut and trim trees and other obstructions which may fall upon or interfere with the use of said parcel of land, for the reason that the language of section 366 is in the disjunctive, "the use thereof in fee simple, or for a less estate." We cannot adopt so narrow and strained a construction. To compel the appellee to condemn the use in fee simple of the whole, when the use in fee simple of part, together with an easement in adjoining land would be ample, would be an arbitrary and unreasonable construction to impose upon the language of the law. It cannot be doubted that if the appellee had only asked for the use in fee of the parcel described, and after occupying it had discovered that it was necessary to have the right to cut and trim trees and bushes interfering with the use and occupation of the parcel first taken, that

Finally, it is contended that, under the general and unrestricted power of amendment given to corporations organized under the general law, the appellee could, after acquiring the appellants' property, for the public uses which we have said are imposed upon it, under its amended charter, divest itself of such public uses, merely by another amendment, repealing or striking out all the provisions of the original amendment, with the result that it would then hold for private uses property condemned for a public use. But this result cannot be accomplished under the law. We have said that the appellee is a public service corporation. Section 51 of article 23, as amended by the act of 1908, while permitting corporations in general to apply for voluntary dissolution, expressly withholds this power from public service corporations, and it can require no argument to show that such a corporation could not by amendment accomplish what it could not do by attempted dissolution. By that provision of the law the state declared its purpose to retain absolute control over public service corporations and to forbid them, by any method or device, to divest themselves of their duties and obligations to the public. The state could for proper cause forfeit the charter of a public service corporation, but its power is just as clear to control its conduct as such, and to compel by mandamus the performance of its public duties. C. & P. Telephone Co. v. B. & O. Tel. Co., 66 Md. 419, 7 Atl. 809, 59 Am. Rep. 167.

But it would be an injustice to assume that the appellee would attempt to do what the law forbids. In McMeekin v. Central Carolina Power Co., 80 S. C. 512, 61 S. E. 1020, 128 Am. St. Rep. 885, the court said: "The language of section 5 of the act plainly imposes upon the defendant a public duty and the petition assumes that the defendant will not comply with the requirements of the statute. It would be prejudging the case to decide that question at this time." And the same is substantially held in Brown v. Gerald, 100 Me. 372, 61 Atl. 785, 70 L. R. A. 472, 109 Am. St. Rep. 526, and in Rockingham County L. & P. Co. v. Hobbs, 72 N. H. 531, 58 Atl. 46, 66 L. R. A. 586. In the latter case the company's charter had been amended, as in this case, with a view to a clearer imposition of a public use upon the property proposed to be taken, and the court, after saying that the public thereby acquired a right to the service of the corporation upon equal and reasonable terms, said further: "In addition to the plaintiff's duty in this regard, the Legislature have power to control the plaintiff in its dealings with the public, and this furnishes additional

of the public." In this state all charters granted or adopted since the Constitution of 1867 may be altered from time to time and repealed at the pleasure of the Legislature, and any corporation may forfeit its charter by nonuser or misuser of its franchises. In any such case, where the use in fee had been condemned as authorized by the statute, there are not wanting authorities of high character holding that this should be treated as a qualified fee simple determinable when the public use ceases, and that the land would revert if the company ceased to use it for the purposes for which it was taken, or upon forfeiture of the company's charter. 1 Lewis on Eminent Domain, § 278; People v. White, 11 Barb. (N. Y.) 28; Hooker v. Utica Turnpike Co., 12 Wend. (N. Y.) 371; Raleigh R. R. v. Davis, 19 N. C. 467. But that question does not properly arise in this case, and we are not to be understood as deciding it, or attempting to decide it, in advance of its presentation.

It results, from what we have said, that none of the constitutional objections made by the appellants can be maintained, and the decree refusing the injunction and dismissing the bill must be affirmed.

Decree affirmed; costs above and below to be paid by the appellants.

1. TRIAL (§ 139*)-DIRECTING VERDICT.

It is the settled law of Maine that, when the evidence is insufficient to support a verdict for the plaintiff, the court is not required to submit the case to the jury, but may direct a

verdict for the defendant.

Dig. § 338; Dec. Dig. § 139.*] [Ed. Note.-For other cases, see Trial, Cent.

2. MASTER AND SERVANT (§ 287*)-INJURIES TO SERVANT-NEGLIGENCE OF FELLOW SERVANT-DIRECTION OF VERDICT.

Where, at the close of the plaintiff's evidence in an action on the case to recover damtiff and caused by the alleged negligence of the ages for personal injuries sustained by the plaindefendant, the presiding justice ordered a nonsuit, and the plaintiff excepted, held, that the nonsuit was rightfully ordered.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 1060-1062; Dec. Dig. § 287.*]