The opinion
EDMONDSON, J.,
Dissenting and joined by WINCHESTER, Y.C.J.
¶ 1 The Court’s decision reflects an understandable sensitivity to the United States Supreme Court’s recent approval in Kelo v. City of New London of a municipal exercise of eminent domain to take unblighted private residential property and deliver it to a private business in anticipation of public benefits to be derived solely from economic development.
¶2 In Oklahoma, our State Constitution extends greater protection to private property than does the Federal Constitution, as the majority opinion ably demonstrates. It also mandates that no private property be taken without just compensation.
¶ 3 However; I do not believe our greater measure of safety for private property was intended to deny non-riparian neighbors access to state water resources; particularly when the water is abundant, access can be achieved merely by taking an easement and is essential to the neighbor’s survival, and the purpose is, as here, to expand electrical power resources in an economy in which energy is in critically short supply.
¶ 4 No one should be denied access to public water resources unless it is demonstrated that the access would impair the welfare of the public itself. New generation of electrical power is legislatively favored though it be by a private company and marketed directly to a private consumer, because it contributes to the national energy pool and to the ultimate benefit and security of the public. See 27 O.S., §§ 4, 7.
¶ 5 Finally, I am not convinced that eminent domain attorney fees awarded against the county, and thus against the people in the county, can be justified by piggybacking the railroad condemnation statutes. In my view, for an award of attorney fees to be authorized, the authorization must be found within the strict confines of the involved statute—here, 27 O.S. § 5—and not merely within condemnation statutes generally. See Head v. McCracken, 2004 OK 84, ¶ 14 , 102 P.3d 670, 680 ; Beard v. Richards, 1991 OK 117 , 820 P.2d 812, 816 ; Carter v. City of Oklahoma City, 1993 OK 134 , 862 P.2d 77, 80 .
¶ 6 With these reservations in mind, I respectfully dissent.