United States v. Appalachian Electric Power Co., 8.

• Decision Date: 22 April 1938
• Docket Number: No. 8.,8.
• Citation: 23 F. Supp. 83
• Court: U.S. District Court — Western District of Virginia
• Parties: UNITED STATES v. APPALACHIAN ELECTRIC POWER CO.

23 F. Supp. 83

UNITED STATES v. APPALACHIAN ELECTRIC POWER CO.

No. 8.

District Court, W. D. Virginia, at Roanoke.

April 22, 1938.

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Harry W. Blair, Asst. Atty. Gen., Huston Thompson, John W. Aiken, Wayne C. Williams, and Allan D. Jones, Sp. Assts. to Atty. Gen., John A. Skiles, of Washington, D. C., and L. A. Gellis, Sp. Attys., Oswald Ryan, Gen. Counsel, Federal Power Commission, and Willard W. Gatchell, Atty., Federal Power Commission, both of Washington, D. C., Joseph H. Chitwood, U. S. Dist. Atty., of Roanoke, Va., and Charles M. Goetz, of Washington, D. C., for plaintiff.

Newton D. Baker and Raymond T. Jackson, both of Cleveland, Ohio, M. F. Millikan, A. Henry Mosle, Creswell M. Micou, Fraser M. Horn, and Wendell W. Forbes, all of New York City, John S. Draper, of Pulaski, Va., and John L. Abbot, of Lynchburg, Va., for defendant.

Abram P. Staples, Atty. Gen., for the State of Virginia.

Homer A. Holt, Atty. Gen., for the State of West Virginia.

PAUL, District Judge.

The cause of action set out in the bill of complaint, stated briefly and in substance, is as follows: That the defendant, a Virginia corporation engaged in the business of producing, distributing, and selling electric power, has begun and is continuing the construction of a dam across the New river near Radford in Pulaski county, Va., for the purpose of impounding the waters of that river and utilizing the same for generating electric power; that the New river is a stream which arises in the northwestern part of the State of North Carolina and flows in a general northerly and northwesterly direction across the State of Virginia, into the State of West Virginia, in which latter state, after joining with the Gauley river, it becomes known as the Kanawha river and, under the latter name, continues to flow in a general northwesterly direction until it discharges into the Ohio river at Point Pleasant, W. Va. It is alleged that the New river and the Kanawha constitute one continuous stream and that it is a navigable interstate stream constituting a navigable waterway of the United States, and that the New river, at the point where defendant's dam is being constructed, is a navigable water of the United States and said dam is being constructed in and across a navigable water of the United States. It is alleged that the plaintiff has recently expended, and is continuing to expend, large sums in improving the conditions and facilities of navigation in that portion of the stream known as the Kanawha river; that defendant's project at Radford would, by impounding the waters of New river, not only render New river impossible of navigation during long periods of each year, but would seriously impair navigation upon the Kanawha river.

It is alleged that the defendant, before proceeding with the construction of its Radford project, applied to and obtained from the State of Virginia a license to construct the same, and that defendant is proceeding under the purported authority of said license. But that the acts of defendant are being performed without the consent of Congress and without any permission or authority of the Secretary of War and without having obtained any license from the Federal Power Commission and that such acts are in violation of the laws of the United States, and particularly in violation of what is known as the Rivers and Harbors Act of March 3, 1899, ?? 9, 10, 33 U.S.C. ?? 401, 403, 33 U.S.C.A. ?? 401, 403, and of the Federal Water Power Act of June 10, 1920, as amended, 16 U.S.C. ?? 791-823, 16 U.S.C.A. ?? 791-823.

It is further alleged that in June, 1926, there was filed before the Federal Power Commission by the New River Development Company, a predecessor in interest of defendant, a declaration of intention to construct the dam at Radford and that in September, 1926, the New River Development Company transferred its rights in such declaration of intention to the defendant, which thereafter continued the presentation of the same to the Federal Power Commission; that the Commission, after causing an investigation to be made and considering the plans of defendant's project, made a finding that said project would affect the interests of interstate commerce; that, notwithstanding said finding, the defendant, without obtaining a license from said Federal Power Commission, began its construction of said dam, on or about June 1, 1934, and is proceeding with the same.

Based upon its allegations that the stream in which the dam is being constructed is a navigable water of the United States and that the construction of the dam will obstruct and impair interstate commerce on the New river and on the Kanawha river and will affect the interests of interstate commerce, the bill prays: (a) That the defendant be enjoined from constructing or maintaining its project otherwise than under a license to be issued by the Federal Power Commission; or in the alternative (b) that the court issue a mandatory order requiring the defendant to remove any and all parts of the project from the limits of New river.

In addition to the essential facts above recited, the bill contains much matter in recital of evidential facts upon which it bases the contention that the New river is navigable and that the construction of this dam will impede navigation on it and on the Kanawha. This matter need not be recited here. So far as it is proven by evidence and is material, references will be made to it in the later discussion.

The Answer.

The answer, briefly summarized, avers in substance the following matter in defense to the bill of complaint: The defendant admits that it has begun and is continuing the construction of the project at Radford. But denies that such construction is in any way unlawful. It denies that New river is a navigable stream over which the United States has jurisdiction and control but, on the contrary, avers that it is a nonnavigable stream and, at the point of the proposed project, is subject only to the jurisdiction and control of the State of Virginia. It avers that the defendant now owns the lands which will be affected by the construction of the dam and that the project does not require or involve the use of any lands or other property of the United States; and that, being the owner of all lands affected, the defendant has a full and complete proprietary right to construct its water power project, subject only to such regulations as the State of Virginia may impose; that permission to construct said dam has been granted by the State of Virginia, in pursuance to application therefor, and that said project is being constructed pursuant to a license granted by the State of Virginia and in conformity to the conditions and restrictions imposed by said state.

Defendant admits that the Kanawha river, lying wholly within the State of West Virginia and into which New river flows, is a navigable stream and that the plaintiff has developed the Kanawha for the improvement of navigation thereon. But it avers that the head of navigation, even with this development, is at a point in the Kanawha downstream from the point of inflow of the New river; that the New river is not and never has been navigable, and that the project of defendant is located on the New river approximately 155 miles upstream from the head of navigation on the Kanawha. Defendant avers that neither the construction nor operation of its project will interfere with or obstruct navigation or the navigable capacity of any navigable water of the United States; that the defendant intends and has declared its intention to so operate its project as not to interfere with or obstruct such navigation or navigable capacity and that, even if this were not true, it would be impossible for said project, in the course of any known or practicable method of operation, to interfere with or obstruct or in any way adversely affect navigation or the navigable capacity of any navigable waters of the United States; that the laws of Virginia under which the license from that state was issued protect any rights of the United States; and that in any event the Secretary of War has power summarily to remove any obstruction if any such occur.

The answer further states that it is true that New River Development Company, predecessor in interest of defendant, filed a declaration of intention with the Federal Power Commission in respect to the Radford project, but says the date of such filing was on or about June 26, 1925, and not June 26, 1926, as alleged in the bill. And admits that all rights and obligations under said declaration of intention were transferred to defendant on September 2, 1926, and that defendant continued presentation of the same before the Commission. It states this declaration of intention was presented for the purpose of obtaining a finding that neither the construction nor operation of defendant's project would affect the interests of interstate commerce. It avers that on June 1, 1927, the Federal Power Commission made a finding that the portion of the New river involved by defendant's project is not "navigable waters" within the meaning of the Federal Water Power Act, which finding was correct. But, it avers, the Commission also made a finding that the proposed construction would affect the interests of interstate commerce, which latter finding, the defendant avers, is erroneous and arbitrary, is unsupported by evidence and contrary to the evidence and facts before the Commission; that the defendant, although challenging the existence of any jurisdiction in the Federal Power Commission over the project, nevertheless offered to accept a federal license containing such conditions relating to the manner of construction and operating such project as are necessary and appropriate to prevent interference with the navigable capacity of the Kanawha river; but that the Commission refused to issue such a license and insisted that defendant...