Sears v. City of Akron

Decision Date04 March 1918
Docket NumberNo. 105,105
Citation62 L.Ed. 688,246 U.S. 242,38 S.Ct. 245
PartiesSEARS v. CITY OF AKRON
CourtU.S. Supreme Court

Mr. George W. Wickersham, of New York City, for appellant.

Mr. John E. Morley, of Cleveland, Ohio, for appellee.

Mr. Justice BRANDEIS delivered the opinion of the Court.

Akron, Ohio, lies on Little Cuyahoga river a short distance above its confluence with the Big Cuyahoga. In May, 1911, the Legislature of Ohio granted to the city, by special act 'the right to divert and use forever' for the purposes of its water supply 'the Tuscarawas river, the Big Cuyahoga and Little Cuyahoga rivers and the tributaries thereto, now wholly or partly owned or controlled by the State.'1 The city already possessed, under the general laws of Ohio, power to appropriate for this purpose, by condemnation proceedings, the property of any private corporation.2 Acting specifically in exercise of the power conferred by the special act and of every other power thereunto enabling, the city, by resolution of its council, passed May 27, 1912, declared its intention to appropriate all the waters, above a point fixed, of the Cuyahoga river and tributaries; and by an ordinance, passed August 26, 1912, it appropriated the same, directed its solicitor to apply to the courts to assess the compensation to be paid, and provided for the payment of 'the costs and expenses of said appropriation' out of an issue of bonds theretofore authorized. The city then con- structed a dam and reservoir at the place specified and announced its intention of diverting the water before or by August 1, 1915.

On July 24, 1915, John H. Sears, a citizen of New York, filed in the Federal District Court for the Northern District of Ohio this suit, praying that the further construction of dam and reservoir and the diversion of the water of the river be enjoined, and alleged, in substance, the following facts: The Cuyahoga River Power Company, a hydro-electric corporation was organized under the general laws of Ohio,3 in 1908. The character of the company's enterprise is described in Cuyahoga River Power Co. v. Northern Realty Co., 244 U. S. 300, 37 Sup. Ct. 643, 61 L. Ed. 1153; and its possible rights were considered in Cuyahoga River Power Co. v. Akron, 240 U. S. 462, 36 Sup. Ct. 402, 60 L. Ed. 743. On July 15, 1915, the company de- livered to him as trustee a deed of trust of all its property to secure an issue of $150,000 of bonds. The property rights or interests which it is alleged the city was about to appropriate and for which it had not paid and proposed not to pay, arose from these transactions of the company:

It caused to be made and had, on or about June 3, 1908, adopted by resolution of its board of directors, surveys, maps and plans known as the 'Roberts-Abbot Plan.' Later it caused to be made and, about April 23, 1909, adopted by resolution of its board of directors, supplemental surveys, maps and a plan, known as the 'Von Schon Plan,' together with description of the several parcels of land required for carrying it out. The first plan provided for development, on the Big Cuyahoga, above the confluence of the Big and Little Cuyahoga rivers, within the limits of the location and plan of development set forth in its certificate of incorporation; and the papers also described the various parcels of land which the company would require for the purpose. The supplemental plan called for the extensive development including most of the rivers of northeastern Ohio, and provided, among other things, for a dam on the Big Cuyahoga above that of the city. It was confessedly beyond the powers conferred by the original certificate of incorporation. That certificate was not amended to include the necessary additional powers until after the passage of the Act of 1911. No public record or filing was made of either of those plans; and the law of Ohio makes no provision for such filing or for any record except that involved in condemnation proceedings. No condemnation proceeding was taken except that instituted June 5, 1908, under the original plan. It does nor appear that any property was acquired under these proceedings. Shortly before the commencement of this suit, the company acquired, at a point some distance below the city's dam, a small parcel of land, which however, extended only to high-water mark. It also acquired at another place below defendant's dam from another riparian owner, a contract for a portion of the river bed and the right to regulate, as to this land, the flow of the river; and acquired options for certain other properties. But the company has not commenced anywhere on the river any part of the proposed water-power development.

The right or property which the bill seeks to protect is mainly, if not wholly, the alleged right to construct and operate in places designated in the certificate of incorporation, the power system described, without danger of impairment by any act of defendants. The bill alleges that the company 'became possessed of and vested with the right to exercise the State's power of eminent domain in order to appropriate and acquire for its own corporate purposes such private property as it deemed necessary for carrying out and performing the matters and things set forth in its said articles of incorporation'; and that the city's proposed action would impair contract rights of the company and also take its property without compensation in violation of the Federal Constitution. The city moved to dismiss the bill, contending that it did not appear from plaintiff's allegations that any contract rights of the company had been impaired or that the city had taken or used, or threatened or proposed to take or use any property of the company; that, on the contrary, the bill showed that the company had no property right which the city's action taken or proposed would involve appropriating; and that, for this reason, it had refrained from including in the condemnation proceedings instituted by it, any alleged property rights of the company, and had not given to it any notice of the city's takings.

The motion to dismiss the bill was sustained by the District Court, on the ground that the company did not possess any such contract right or property as the city was alleged to have impaired or invaded or threatened to appropriate; and also on the ground that the bill did not set forth facts entitling plaintiff to seek relief in equity and did disclose laches. A decree was entered dismissing the bill; and a direct appeal to this court was taken under section 238 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1157 [Comp. St. 1916, § 1215]).

First. As to the alleged impairment of contract: Plaintiff contends that the incorporation of the company in 1908 under the general laws constituted a contract by which the State granted it the right to construct and operate a power system in the places designated in the certificate and the right to take property for that purpose and to have the water flow past that property uninterrupted and undiminished; and that the ordinance of 1912 is a law which impairs that contract in violation of article 1, § 10, of the Federal Constitution. It is clear that the contract right created by incorporation alone was not illegally impaired by the ordinance, because there was no contract by the State with reference to the water rights. Incorporation did not imply an agreement that the quantity of water available for development by the company would not be diminished. St. Anthony Falls Water Power Co. v. St. Paul Water Commissioners, 168 U. S. 349, 371, 18 Sup. Ct. 157, 42 L. Ed. 497. The so-called charter simply conferred upon the company the power to take lands necessary for and to construct thereon, the dams, locks, and other parts of its plant.4 If by purchase or by right of eminent do- main under the charter powers, the company becomes the owner of riparian lands, it acquires the riparian rights of former owners; or it may otherwise acquire from the owners specific rights in the use and flow of the water. But these would be property acquired under the charter, not contract rights expressed or implied in the grant of the charter. Furthermore, the contract inhering in the charter (as distinguished from property acquired under the charter) was subject to the State's reserved power to amend or repeal, as provided in article 13, § 2, of the Ohio Constitution. Ramapo Water Co. v. City of New York, 236 U. S. 579, 583, 35 Sup. Ct. 442, 59 L. Ed. 731. The Act of 1911, under which the city proceeded, may be treated as an amendment of the company's charter making its rights subject to those of the city, if that if necessary to justify the proceeding of the city, which the act authorized. See State v. City of Hamilton, 47 Ohio St. 52, 74, 23 N. E. 935; Hamilton Gas Light Co. v. Hamilton City, 146 U. S. 258, 13 Sup. Ct. 90, 36 L. Ed. 963; Berea College v. Kentucky, 211 U. S. 45, 57, 29 Sup. Ct. 33, 53 L. Ed. 81.

Second. As to the alleged property rights: It follows from what has been said above, that at least until something more had occurred than incorporation, the city was free as against the Cuyahoga Company to appropriate any of the land or any of the water rights which might otherwise have come under the development described in its certificate of incorporation. Plaintiff contends, however, that it became vested with an indefeasible property right to proceed with its development (a) when by resolution the board of directors adopted...

To continue reading

Request your trial
62 cases
  • United States Tennessee Valley Authority v. Powelson
    • United States
    • U.S. Supreme Court
    • May 17, 1943
    ...point. See Tacoma v. Nisqually Power Co., supra. That result is the necessary import of this Court's ruling in Sears v. City of Akron, 246 U.S. 242, 38 S.Ct. 245, 62 L.Ed. 688. Suit was brought in that case by the trustee of the property of an Ohio corporation to enjoin the City of Akron fr......
  • Alabama Power Co. v. Gulf Power Co.
    • United States
    • U.S. District Court — Middle District of Alabama
    • March 15, 1922
    ... ... L. Hood, of ... Gadsden, Ala., and Graham Sumner, of New York City, for ... petitioners ... Coleman, ... Coleman & Spain, of Birmingham, Ala., Marion ... D. & W. Ry. Co., 208 U.S. 598, 28 ... Sup.Ct. 331, 52 L.Ed. 637, 13 Ann.Cas. 1008; Sears v ... Akron, 246 U.S. 242, 38 Sup.Ct. 245, 62 L.Ed. 688 ... However, ... that is not ... ...
  • United States v. Meyer
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 23, 1940
    ...689, 67 L.Ed. 1186; Joslin Manufacturing Co. v. City of Providence, 262 U.S. 668, 43 S.Ct. 684, 67 L.Ed. 1167; Sears v. City of Akron, 246 U.S. 242, 38 S.Ct. 245, 62 L. Ed. 688; Bragg v. Weaver, 251 U.S. 57, 40 S.Ct. 62, 64 L.Ed. 135. Determination of the extent, amount or title of property......
  • United Mine Workers of America v. Pennington Local Union No 189, Amalgamated Meat Cutters, and Butcher Workmen of North America v. Jewel Tea Company
    • United States
    • U.S. Supreme Court
    • June 7, 1965
    ... ... ) to boycott recalcitrant local contractors and manufacturers and to bar from the (New York City) area equipment manufactured outside its boundaries.' ... Page 707 ... 325 U.S., at ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT