Appeal
from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.
Appeal from Chancery Court, Tallapoosa County; W.W
Whiteside, Chancellor. Appeal from City Court of Montgomery
Gaston Gunter, Judge.
De
Graffenried, J., dissenting, and Sayre, J., dissenting in
part on rehearing.
The
following is an abstract of the various bills and petitions:
The Mt. Vernon-Woodberry Cotton Duck Company, the Continental
Trust Company, as trustee, the International Trust Company as
trustee, and the Tallassee Falls Manufacturing Company, filed
a petition with the circuit judge of the Fifth judicial
circuit, praying that a writ of prohibition issue to the
probate court of Tallapoosa county, and to the judge thereof
restraining and prohibiting the said probate court and the
judge thereof from hearing and determining certain
proceedings instituted in said probate court by the Alabama
Interstate Power Company in which it seeks to condemn a
certain portion of the dam across the Tallapoosa river at
Tallassee owned by the first-named corporation herein, and
certain other property or property rights in Tallassee
belonging to said last-named corporation. The petition is
made an exhibit to the petition for the writ, and the writ
attacked the right, under sections 3627-3637, Code 1907, of
the Alabama Interstate Power Company, to condemn any portion
of the dam of any other corporation, or to condemn lands on
which to erect a power house for the use of water to be
derived from the condemnation of any part of such dam, and
that, if these statutes confer the right sought in the
condemnation proceedings, they are unconstitutional and void
as appears from the opinion rendered. The circuit judge
issued a rule nisi or alternate writ suspending the
proceedings in the probate court, and suspending the right of
the Alabama Interstate Power Company to further prosecute
such proceedings upon petitioner's giving bond, etc., and
the appeal was from this order.
The Tallassee Falls Manufacturing, the Mt. Vernon-Woodberry
Cotton Duck Company, the Continental Trust Company, as
trustee, the International Trust Company of Maryland as
trustee, and the Consolidated Cotton Duck Company filed their
bill in the chancery court of Tallapoosa county against the
Alabama Interstate Power Company and others, setting up the
prohibition proceedings filed with the Honorable S.L. Brewer
as judge of the Fifth judicial circuit, to prohibit the
probate court and the judge thereof of Tallapoosa county
hearing or determining or proceeding to hear or determine the
condemnation proceedings instituted by the Alabama Interstate
Power Company and others as appears above. The fact that a
rule nisi or alternate writ was issued, and that from said
order or alternate writ the Alabama Interstate Power Company
had appealed to the Supreme Court, had given security for
costs, and executed a bond which it claims suspended and
superseded said order; that said bond and said security for
costs had been approved by the judge of the circuit court;
that as soon as the said bonds were approved the said judge
of probate of Tallapoosa county set such condemnation
proceedings down for hearing, and will hear the same on July
18, 1912, unless said hearing and trial is restrained and
enjoined; that there is no appeal from any judgment the
probate court might render, the only appeal being from the
assessment of damages, and that the probate court was wholly
without jurisdiction to grant the relief prayed in said
petition for the reasons assigned in said petition for
prohibition, and for other additional reasons. The petition
proceeds to set out the reasons based on petitioner's
construction of the statute or Code section (3627 et seq.)
above mentioned. The bill also sets out the petition for
condemnation as filed by the Alabama Interstate Power
Company.
The Alabama Interstate Power Company filed its bill against
the Tallassee Falls Manufacturing Company and others to
enjoin pendente lite the said corporation, its officers,
agents, servants, and attorneys from in any manner
interfering with or attempting to interfere with the
officers, agents, and servants of orator in making an
examination and survey of its proposed lines for the
transmission of power and other things over, along, and
across the waters and lands of defendant as may be necessary
to the selection of the most advantageous routes and cites
for the location of orator's proposed lines, power house,
and other hydraulic structures on the lands and waters of
defendant, and for all of the other purposes mentioned in the
application for condemnation so filed by orator in the
probate court of Tallapoosa county.
The
following analysis of section 3627, Code 1907, is set out as
illustrating the purposes and scope of the litigation:
The first part of the section designates to what corporation
the law is intended to apply. It relates to corporations
domestic or foreign, having the right to manufacture, supply,
and sell to the public, power, produced by water after
acquiring, except by condemnation, a dam site, etc. It is
said these shall have the following additional rights and
powers: (1) To acquire by condemnation lands, etc., for the
construction,
etc., of said dam at points up or down the stream. (2) To
construct and operate its said site, or other point up or
down the stream therefrom, a dam, together with all works
incident, etc., and, in connection therewith, to impound or
divert water, and to raise higher such dam and to enlarge the
works necessary, etc. (3) To construct other works
necessarily incident or related thereto, either up or down
stream therefrom, as may be required or deemed expedient by
such corporation in the manufacture and supply of power
produced by water as a motive force. (4) To acquire by
condemnation all lands or waters or rights or easements in
lands or waters (a) likely or liable to be flooded or damaged
by impounding, or diverting the water, etc., or (b) necessary
for the construction or operation of dams or power houses or
works necessarily incident or related thereto, or (c) liable
to be flooded or damaged by the construction or enlargement
of the dams, or works incident, necessary, or related
thereto, or damaged or taken in the construction, operation,
or use of canals, tailraces, or exit ways, necessary, etc.
(5) To acquire substations, etc., by condemnation, with
exceptions. But shall have no right (a) to condemn lands,
waters, etc., in use for power purposes by other companies
having similar powers, or essential to its operation; or (b)
lands, etc., held by such other corporation for power
purposes, where the lands, waters, etc., in themselves or in
connection with other land, etc., owned can be made the
reasonable basis of 1,000 horse power; (c) but may condemn
lands, etc., held by such other corporation at any point
unless the lands, etc., in themselves or in connection, etc.,
may be made the basis of 500 horse power; (d) and may condemn
lands, etc., of such other corporation at any point in excess
of such other corporation facilities for using the same
(independently of actual or proposed works of the condemning
party) for the manufacture of power by its plant as the same
is established at the time condemnation proceedings is begun,
if it has been in operation for five years; (e) nor shall
cotton factories be interfered with except as to excess
water, as explained, which may be condemned; (f) may acquire
and condemn gristmills, etc.; (g) just compensation shall be
first paid, etc.
The statute then gives power (already having a dam site) to
acquire by condemnation, for construction of said dam, lands
up or down necessary for operation, and to construct at its
said original site or at other points up or down stream a
dam, together with all works necessary, etc., and to
construct other works as may be required or deemed expedient,
and, to do this, may acquire by condemnation lands or waters
flooded or damaged, or necessary for construction of dams or
power houses or works necessary or incident to the
construction and operation of the scheme of the corporation
as previously authorized, and to acquire substations, etc.,
with certain restrictions stated, and then certain
restrictions on the exercise of the foregoing powers: First,
it is said there shall be no power to condemn lands, water,
etc., in use for power purposes by other companies having
similar powers, and essential to their operation. Second, it
is said it shall have no power to condemn lands, water, etc.,
held by such other corporations for such power purposes where
the lands, water, etc., in themselves or in connection with
other lands owned can be made the basis of 1,000 horse power.
But in qualification or explanation of this, it is said that
the company may
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