Carolina Tennessee Power Co. v. Hiawassee River Power Co.

• Decision Date: 28 May 1918
• Docket Number: 585.
• Citation: 96 S.E. 99,175 N.C. 668
• Parties: CAROLINA TENNESSEE POWER CO. v. HIAWASSEE RIVER POWER CO.
• Court: North Carolina Supreme Court

96 S.E. 99

175 N.C. 668

CAROLINA TENNESSEE POWER CO. v. HIAWASSEE RIVER POWER CO.

No. 585.

Supreme Court of North Carolina

May 28, 1918

Appeal from Superior Court, Cherokee County; Adams, Judge.

Action by the Carolina Tennessee Power Company against the Hiawassee River Power Company. From a judgment for plaintiff, defendant appeals. No error.

Power company that files its map of water power location first though it is not marked filed has prior right to such location.

Civil action tried at March term, 1917, of Cherokee superior court before Judge W. J. Adams and a jury. The case was before us at a former term and for any facts, not herein stated reference may be had to the report of the case (171 N.C. 248 88 S.E. 349).

The following summary of the facts, so far as necessary to be stated at present, will show the contentions of the parties in a general way: This action was brought in the superior court of Cherokee county by the plaintiff against the defendant, both of which are North Carolina corporations, on the 21st day of August, 1914. Plaintiff alleged that it was a corporation organized under the laws of North Carolina, by virtue of a special act of the General Assembly, ratified the 16th day of February, 1909 (chapter 76, Private Laws of North Carolina 1909), and further alleged that, by virtue of the rights conferred upon it by its charter, it had during the year 1909, and thereafter, but before the organization of the defendant company, surveyed, staked out, located, and adopted by authoritative corporate action locations and sites on the Hiawassee river in Cherokee county, N. C., for building and maintaining two hydroelectric plants for the generation of electricity to be sold for heat, light, and power purposes that it had acquired title to 50 per cent. of the lands necessary for its proposed developments, and had obtained contracts covering some lands for the same, and had begun condemnation proceedings for other lands; and that it had by deeds, contracts, and under condemnation proceedings 75 per cent. of the lands necessary for its proposed developments; that on the 21st day of June, 1911, it had duly filed in the office of the clerk of the superior court for Cherokee county maps and plats of its locations, as required by the terms of its charter; and that on or about July 13, 1914, the defendant corporation had been organized, and had purchased some lands lying above the proposed dams and hydroelectric developments of the plaintiff, which lands were necessary for the plaintiff's uses and purposes, and were included in the maps and plans of said developments as filed in the office of the clerk of the superior court for Cherokee county, and that the defendant was proceeding to acquire by deed, contract, and condemnation, other lands and rights along and on Hiawassee river, which were necessary for the plaintiff's proposed developments; and that the defendant was in this way and manner interfering with and obstructing and preventing the plaintiff from carrying out its plans to make the developments contemplated by its charter, and by the surveys, maps, plans, and proceedings used by it. The defendant filed an answer and an amended answer in the case, denying the allegations of the complaint of the plaintiff, and pleading that if the plaintiff had ever acquired and adopted any locations on the Hiawassee river for its proposed developments, it had, prior to the beginning of this action, abandoned the same; that the defendant had been organized as a corporation on the 13th day of July, 1914, and had immediately after the organization of the defendant corporation adopted by appropriate corporate action certain locations for its dams and power houses on the Hiawassee river in Cherokee county, N. C.; and that its right to any conflicting locations was superior to that of the plaintiff. Plaintiff replied to the defendant's amended answer, and denied the allegations contained therein.

Upon the trial the following issues were submitted to the jury who answered the same as follows:

(1) Were the locations for the dams, reservoirs, and public works claimed by the plaintiff surveyed and staked out on the Hiawassee river in the year 1909, as alleged in the complaint, and as indicated on the maps offered in evidence by plaintiff, marked 'Exhibits 7 and 7A'? Answer: Yes (by consent).

(2) If so, did the plaintiff in the year 1909 and thereafter, but before the organization of the defendant company in July, 1914, adopt said locations by authoritative corporate action, as alleged in the complaint? Answer: Yes.

(3) Did the plaintiff prior to the commencement of this action, on the 21st day of August, 1914, abandon its said locations and proposed plans as alleged in the answer? Answer: No.

(4) Did the plaintiff file the maps or plats of its said locations in the office of the clerk of the superior court of Cherokee county, on or about June 21, 1911, as alleged in the complaint? Answer: Yes.

(5) Did the plaintiff, on or about the 17th day of August, 1914, by authoritative corporate action, adopt the surveys and locations for its dams, reservoirs, and public works, which had theretofore been made and marked out on the Hiawassee river, as alleged in the complaint? Answer: Yes (by consent).

(6) Were the locations for the dams, reservoirs and public works claimed by the defendant surveyed and staked out on the Hiawassee river as alleged in the answer? Answer: Yes (by consent).

(7) If so, did the defendant thereafter by authoritative corporate action adopt said locations, and, if so, when? Answer: No.

There was a judgment in favor of the plaintiff and the defendant appealed.

J. N. Moody and Dillard & Hill, all of Murphy, Felix Alley, of Waynesville, Zebulon Weaver, of Asheville, and McDaniel & Black, of Atlanta, Ga., for appellant.

Martin, Rollins & Wright, of Asheville, for appellee.

WALKER, J. (after stating the facts as above).

The plaintiff says that, upon a fair analysis and consideration of the verdict, there is little, if anything, left, after the decision in the former appeal, for the defendant's present contentions to rest upon, and for these reasons, as stated in its brief:

"First, it was found in the first issue by consent that plaintiff's locations for its dams, reservoirs, and public works had been surveyed in the year 1909, as alleged in the complaint, and the plaintiff had alleged in its complaint that in the year 1909 that officers, engineers, and representatives of the plaintiff had entered upon, explored, and surveyed the lands bordering on the Hiawassee river for the location of said works. So the finding of the first issue, by consent, established the fact that the plaintiff had had the proper surveys made.

Second, the jury found, based on abundance of testimony as we insist, that the plaintiff has, as set out in the second issue, prior to the organization of the defendant company, adopted said locations by authoritative corporate action.

Third, that the plaintiff did not abandon said locations as alleged in the answer.

Fourth, that plaintiff had filed maps or plats of its location in the office of the clerk of the superior court of Cherokee county, June 21, 1911.

Fifth, that on the 17th day of August, 1914, plaintiff had, by a formal resolution, adopted said locations for its dams, reservoirs, and public works. This issue was found by consent of the defendant and was clearly proven by the minutes of the corporation introduced, dated 17th day of August, 1914.

Sixth, the jury found, by consent, that the locations claimed by the defendant had been surveyed and staked out on the Hiawassee river; and

Seventh, that the defendant had not adopted such locations."

Plaintiff then insists that the defendant would not be entitled to a new trial in any event, because of any error which arose either on the first, second, third, or fourth issues, unless there was also reversible error arising on the seventh issue; and, further, defendant would not be entitled to a new trial for reversible error arising on the seventh issue, unless there was reversible error arising either on the second, third, or fourth issue as well. In other words, the defendant agrees that the plaintiff had adopted locations on August 17, 1914. Now unless there was error on the seventh issue concerning the defendant's adoption of said locations prior thereto, then the verdict in favor of the plaintiff on the fifth issue, establishing the plaintiff's location, entitles the plaintiff to judgment, and, as before stated, reversible error, if it existed on the seventh issue would not entitle the defendant to a new trial, unless there was also reversible error, either on the second or third or fourth issues, and, of course, then only on the issue concerning which reversible error was found. These are substantially the plaintiff's contentions upon the verdict, and they would seem to be a fair and reasonable construction of the same, when we understand and consider the questions at issue.

When the case was here at a former term, we remanded it, so that the jury might find more definitely certain facts regarding the time when the plaintiff "surveyed, staked out, and adopted the locations of the sites of its dam, reservoirs, and public works on the Hiawassee river," and also pass upon certain findings stated by the presiding judge as supplementary to the verdict of the jury, and especially to have it found, under an issue submitted for the purpose, whether plaintiff's map was duly filed in the office of the clerk of the superior court, and, if it was, at what time. The jury have found all the essential facts in favor of the plaintiff, this being the second verdict.

It has been found that the map of plaintiff's locations...