Augusta Power Co. v. Savannah River Electric Co., 12034.

Decision Date26 November 1930
Docket NumberNo. 12034.,12034.
CourtSouth Carolina Supreme Court

163 S.E. 822

AUGUSTA POWER COMPANY et al., Appellants.

No. 12034.

Supreme Court of South Carolina.

Nov. 26, 1930.

Appeal from Common Pleas Circuit Court of McCormick County; E. C. Dennis, Judge. The order of Judge Dennis follows:

This matter comes before me upon the return to a rule to show cause issued against the defendant on behalf of the plaintiffs by Judge C. J. Ramage and returnable before me at Lexington in the Eleventh circuit for the purpose of procuring an interlocutory injunction to prevent the condemnation of certain lands in McCormick county owned by plaintiffs. The matter came before me at

[163 S.E. 823]

Lexington, S. C., on September 14, 1929, at which time the issues involved were very fully argued by attorneys representing both parties. It appears from the pleadings that Savannah River Electric Company, a public utility company chartered by a special act of the General Assembly of South Carolina in February, 1927 (Acts 1927, vol. 35, page 887), served notice of condemnation in January, 1929, under the terms of the act on the plaintiffs seeking to condemn certain lands along the Savannah river in McCormick county. A rule to show cause and temporary restraining order was procured in an action brought by plaintiffs in Greenwood county, the Eighth judicial circuit, and Judge Rice, then presiding in that circuit, transferred the case to McCormick county, holding that the court of common pleas for Greenwood county had no jurisdiction of the subject of the action. Upon an appeal from this order, it was affirmed by the Supreme Court in a decision recently rendered.

It appears from the complaint that Augusta Power Company is not a public utility company, but is merely a business trust composed of certain of the plaintiff trustees, owning about 760 acres of land along the Savannah river in South Carolina and Georgia alleged to be suitable for dam sites. Defendant proposes to construct a dam several miles below these lands, and at such an elevation as will flood the lands of plaintiffs.

In deciding the questions arising in this controversy, I have been guided by the principles frequently laid down by our court to the effect that there are two essential conditions to the granting of even temporary injunctions; first, the complaint must allege facts which appear to be sufficient to constitute a cause of action for injunction, and, second, on the entire showing from both sides it must appear, in view of all the circumstances, the injunction is reasonably necessary to protect the legal rights of the plaintiff pending the litigation. Alderman & Sons Co. v. Wilson. 69 S. C. 159, 48 S. E. 85; Northrop v. Simpson, 69 S. C. 554, 48 S. E. 613; Marion County Lumber Co. v. Tilghman L. Co., 75 S. C. 221, 55 S. E. 337; Boyd v. Trexler, 84 S. C. 51. 65 S. E. 936; Kelly v. Tiner, 86 S. C. 160, 68 S. E. 465.

The broad question presented is as to the right of defendant to condemn the lands above described. Plaintiffs contend that no such right exists (1) because plaintiffs possess a dam site superior to that of defendant. Without going into detail as to the provisions of defendant's charter, it is sufficient to say that it has been granted permission by the state of South Carolina to build a dam across Savannah river at any point along said river in McCormick county, and to condemn such lands as might be necessary in pursuance of its public enterprise of developing and selling hydroelectric power. No limitation is found in the act as to the location of the dam, but on the contrary the Legislature obviously intended to leave the selection of its location to defendant. In the absence of any such limitation or restriction, It is well settled that the location of the dam is solely a matter for the judgment of the party exercising the right of eminent domain. Riley v. Union Station. 71 S. C. 457, 51 S. E. 485, 110 Am. St. Rep. 579; 20 Corpus Juris, 632; 10 Ruling Case Law, 183; United States v. Burley (C. C.) 172 F. 615; Henderson v. Lexington, 132 Ky. 390, 111 S. W. 318, 22 L. R. A. (N. S.) 82 and note; Samish River Boom Co. v. Union Boom Co., 32 Wash. 586, 73 P. 670; State v. Superior Court for Thurston County, 83 Wash. 445, 145 P. 421, 148 P. 7; City of Pasadena v. Stimson, 91 Cal. 238, 27 P. 604; Hyattsville v. Washington, etc., Railway Co., 122 Md. 660, 90 A. 515; New York Cent. & H. R. R. Co. v. Gas-Light Co., 5 Hun (N. Y.) 201.

The second contention of plaintiffs is that the use will not be public, in that the power house will be located in Georgia, and therefore no power will be generated in South Carolina. I am unable to see how the location of defendant's power house can have any possible bearing on defendant's right to condemn. No such limitation or restriction is found in the act under which it is chartered. Obviously, the Legislature knew that the Savannah river was the boundary line between the states of South Carolina and Georgia, and that the power house would necessarily be located on one side of the river or the other. Had it intended to impose upon the defendant's right to condemn a limitation that the power plant should be located in this state, the act would have so restricted the defendant. The broad purpose in the mind of the Legislature evidently was to foster and procure the development of hydroelectric power, and the facility with which such power is now transmitted renders the location of the power plant a purely incidental detail of the undertaking. Pittsburg, etc., Co. v. Listen, 70 W. Va. 83, 73 S. E. 86, 40 L. R. A. (N. S.) 602. Defendant alleges its intention to distribute electricity to the public in South Carolina, and the mere fact that the citizens of the state of Georgia may also be benefited does not change the nature of the use from that of public to private. 20 Corpus Juris, 553; Grover, etc., Co. v. Lovella, etc., Co., 21 Wyo. 204, 131 P. 43, L. R. A. 1916C, 1286, Ann. Cas. 1915D, 1207; Gilmer v. Lime Point, 18 Cal. 229; Washington Water Power Co. v. Waters, 19 Idaho, 595, 115 P. 682; Columbus Water Works Co. v. Long, 121 Ala. 245, 25 So. 702; In re Townsend, 39 N. Y. 171; Carnegie Natural Gas Co. v. Swiger, 72 W. Va. 557, 79 S. E. 3, 46 L. R. A. (N. S.) 1073 and note; Rogers v. Toccoa Electric Power Co., 163 Ga. 919, 137 S. E. 272.

It is next contended that the use will not

[163 S.E. 824]

be public in that plaintiffs own certain lands in Georgia that will be necessary for defendant's purpose, and that no right of condemnation exists in that state. Defendant avers in its return that it has the right to condemn in Georgia, but plaintiff's position in this respect obviously presents no ground for injunctive relief in this action because the right of condemnation in South Carolina of lands situate wholly within South Carolina and the limitations thereupon are controlled by the Constitution, statutes, and decisions of this state, and the charter of the defendant. In defendant's charter, the power of eminent domain over lands situate in this state is expressly conferred, and no limitation as to the acquisition of lands in Georgia is placed thereupon. It is contended, however, that plaintiff's South Carolina lands in conjunction with its Georgia lands form a dam site, thus comprising a unit, the value of which would be destroyed by the condemnation of the South Carolina lands. If such a contention as this were upheld, it would destroy the sovereign right of the state of South Carolina to acquire for a public use lands situate wholly within the state merely because the owner owns lands in an adjoining state. A mere statement of the proposition demonstrates its lack of logic. Colgate v. Philadelphia Electric Power Co. (D. C.) 20 F.(2d) 263. It is suggested that by the taking of the lands sought to be condemned the value to the remainder will be greatly minimized or practically destroyed. This, however, is no defense to the right of defendant to condemn, as the condemnation statutes under which defendant is proceeding and the Constitution of this state amply provide for just compensation.

Again it is suggested that defendant cannot condemn because defendant will sell its power to other allied companies, and therefore will not be engaged in a public enterprise; that in effect is not a public utility.

That the development and sale of hydroelectric power is a public use has been so repeatedly settled by our court that it is no longer open to question. Ingleside Mfg. Co. v. Light & Water Co., 76 S. C. 95, 56 S. E. 664; Southern Power Co. v. Walker, 89 S. C. 84, 71 S. E. 356; McMeekin v. Central Carolina Power...

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