Blue Ridge Interurban R. Co. v. Oates
| Decision Date | 13 December 1913 |
| Citation | 80 S.E. 398,164 N.C. 167 |
| Parties | BLUE RIDGE INTERURBAN R. CO. v. OATES ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Henderson County; Lyon, Judge.
Condemnation proceedings by the Blue Ridge Interurban Railroad Company, to condemn certain power sites owned and controlled by R. M Oates and the Hendersonville Light & Power Company. From a decree in favor of complainant, defendants appeal. Reversed.
Where certain water rights sought to be condemned by complainant interurban railroad company were being used or held for use by defendant power company so as to be exempt from further condemnation under Pub.Laws 1913, c. 94, held a question for the jury.
James H. Merrimon, of Asheville, Michael Schenck, of Hendersonville, Britt & Toms, of Asheville, and Staton & Rector, of Hendersonville, for appellants.
Manning & Kitchin, of Raleigh, Smith & Shipman, of Hendersonville and Tillett & Guthrie, of Charlotte, for appellee.
The Hendersonville Light & Power Company was chartered in 1904 for the purpose of supplying electric lights and power to Hendersonville and the surrounding community. Its power plant is located on Big Hungry creek near Hendersonville; its lands consisting of three small tracts known as power No. 1, power No. 2, and power No. 3, the first only being fully developed and supplying the electric power used at this time. The second is partly developed, and the third held for development in connection with the others. The company has furnished for 10 years electric light and power to the people of Hendersonville and the vicinity. In 1912 George E Laid-law and others obtained a charter in South Carolina under the name of the Manufacturers' Power Company. But finding that they could not condemn water power under our laws, it being prohibited to any water power company to do this by Laws 1907, c. 74, they organized the Blue Ridge Interurban Railroad Company, claiming that under Laws of 1907, c. 302, having the power to construct an interurban railroad, they could condemn water powers for that purpose. The plaintiffs instituted this proceeding to condemn for their purposes the tracts No. 2 and No. 3 above described belonging to the defendants. The summons was dated February 27, 1913, but the prosecution bond, which is required by Revisal, § 450, to be given "before issuing the summons," is dated March 10, 1913, and summons was served on that day on the defendants.
Chapter 74, Laws 1907, conferring the power of condemnation on telephone and electric light and power companies, contains the following provisos: "Provided, that the power given under this act shall not be used to interfere with any mill or power plant actually in process of construction, or in operation; and provided further, that water powers, developed or undeveloped, with the necessary land adjacent thereto for their development, shall not be taken." Chapter 302, Laws 1907, authorizes street and interurban railway companies owning "lands on one or both sides of a stream" as follows: "Whenever such company shall not own the entire water front, or all the lands, water rights or other easements necessary to be used in fully developing such water power, then such railroad company shall have the power to acquire any other lands, water rights or easements which may be needed to fully develop such water power; and if such company cannot agree with the owner or owners for the purchase of such lands, water rights or other easements, the same may be condemned, appropriated and taken by such railway company for that purpose, and the procedure shall be the same as that provided by chapter 61 of the Revisal of 1905, entitled 'Railways' and relating to the condemnation of lands for railroads." It would therefore seem that if a company needed a water power to produce electric power, and styled itself an electric light and power company, it could not condemn the water power of another for that purpose. Chapter 74, Laws 1907. But if it styled itself "a street and interurban railway company," and should "own land on one or both sides of a stream which can be used in developing water power" it might have condemned the additional lands "needed to fully develop such water power." Chapter 302, Laws 1907. Power Co. v. Whitney, 150 N.C. 34, 63 S.E. 188, held that water powers could not be condemned in this state, being against our public policy as declared in chapter 74, Laws 1907.
While matters were in this state, the Legislature enacted chapter 94, Laws 1913, ratified March 8, 1913, which was entitled, "An act to amend chapter 302, Laws 1907, relating to the right of eminent domain." The amendment consisted in the addition to said chapter 302, § 1, Laws 1907, of the following words: "Provided, further, that such company or companies shall not have the power to condemn any water power, right or property of any person, firm or corporation engaged in the actual service of the general public, where such power, right or property is being used or held to be used or to be developed for use in connection with or addition to any power actually used by such persons, firms or corporations serving the general public." This act ratified March 8, 1913, was subsequent to the date in the summons issued by the plaintiff in this proceeding (February 27), but was prior to giving the prosecution bond in that case, which is required to be done "before the summons is issued," and was also prior to the service of the summons in this case. At that time the plaintiff had acquired no vested right in the land sought to be condemned, and the Legislature had the power to withdraw, or repeal, any provision of law under which the plaintiffs could have acted, if indeed they were authorized to condemn this property by chapter 302, Laws 1907.
In Dyer v. Ellington, 126 N.C. 941, 36 S.E. 177, it is said:
In Williams v. Railroad, 153 N.C. 364, 69 S.E. 403, the court said:
In Pearsall v. Railroad, 161 U.S. 647, 16 S.Ct. 705, 40 L.Ed. 838, cited and approved in Bank v. Tennessee, 163 U.S. 425, 16 S.Ct. 1113, 41 L.Ed. 211, it is said: "Where no act is done under the provision, and no vested right is acquired prior to the time when it is repealed, the provision may be validly recalled, without thereby impairing the obligation of the contract." To same effect, Railroad v. Texas, 170 U.S. 240, 18 S.Ct. 603, 42 L.Ed. 1017.
The Legislature may alter a provision of law at any time before the rights of parties are settled. Phifer v. Com'rs, 157 N.C. 150, 72 S.E. 852; State v. Cantwell, 142 N.C. 616, 55 S.E. 820, 8 L. R. A. (N. S.) 498, 9 Ann. Cas. 141. In Railroad v. Nesbit, 10 How. 395, 13 L.Ed. 469, it was held that even after the acts required to condemn had been performed, except payment of compensation assessed, it was competent for the Legislature to repeal. Wilson v. Jenkins, 72 N.C. 9.
A man's land should stand condemned when, and only when, every step which the law prescribed to that end has been complied with. State v. Jones, 139 N.C. 639, 52 S.E. 240, 2 L. R. A. (N. S.) 313. There is no vested right under any general statute until all necessary steps have been taken. Gaslight Co. v. Hamilton, 146 U.S. 269, 13 S.Ct. 90, 36 L.Ed. 963. A right is vested when judgment is entered. Dunham v. Anders, 128 N.C. 213, 38 S.E. 832, 83 Am. St. Rep. 668. It is when the right becomes absolute that no subsequent repeal can invalidate it. Copple v. Com'rs, 138 N.C. 134, 50 S.E. 574.
Even if the right to condemn water powers had been conferred upon the plaintiff company by a special act of the Legislature, it was competent for the Legislature to repeal it. The Constitution of North Carolina, art. 8, § 1, prescribes: This provision was placed in our Constitution, as it has been placed in the Constitutions of all the other states, to avoid the effect of the Dartmouth College decision, which held that the charters of corporations were contracts, and not privileges revocable at the will of the state. This provision in our Constitution fixes every corporation taking out a charter since 1868 with notice that the state has the right to repeal or alter such charter at will. Wilson v. Leary, 120 N.C. 92, 26 S.E. 630, 38 L. R. A. 240, 58 Am. St. Rep. 778; Ward v. E. City, 121 N.C. 2, 27 S.E. 993; Coleman v. Railroad, 138 N.C. 354, 50 S.E. 690.
At the time the act of March 8, 1913, was enacted, the plaintiff had filed no prosecution bond nor complaint, and the summons was not served. It goes without saying that it had acquired no vested right to...
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