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

• Decision Date: 29 March 1916
• Docket Number: 577,580.
• Citation: 88 S.E. 349,171 N.C. 248
• Parties: CAROLINA-TENNESSEE POWER CO. v. HIAWASSEE RIVER POWER CO.
• Court: North Carolina Supreme Court

88 S.E. 349

171 N.C. 248

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

Nos. 577, 580.

Supreme Court of North Carolina

March 29, 1916

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

Action for injunction by the Carolina-Tennessee Power Company against the Hiawassee River Power Company. Judgment for plaintiff, and both parties except and appeal. Error on defendant's appeal, and new trial ordered, and plaintiff's appeal dismissed.

Under the Constitution as amended the presiding judge on a final hearing in an action for injunction tried before a jury upon issues and oral evidence could not find the facts, as it was the jury's province to find the ultimate facts; and the facts found by the court could not be considered on appeal.

In action to enjoin power company from interfering with plaintiff power company's previously acquired water rights, held, on the evidence, that there should have been an issue as to whether a map of plaintiff's location was filed with clerk of superior court, and, if so, when it was filed.

The plaintiff was incorporated by a special act of the General Assembly ratified on February 16, 1909, it being Private Laws 1909, c. 76, and was organized on May 25, 1909. It was given by its charter numerous and comprehensive powers and capacities, and, among others, the right:

"To carry on any and all business in any wise appertaining or connected with the manufacturing and generating distributing and furnishing of electricity, compressed air gas, or steam for light, heat and power purposes, including the transacting and conducting of any and all business in which electricity, compressed air, gas or steam is now or may be hereafter utilized, and all matters incidental or necessary to the distribution of light, heat and power; to manufacture and repair, sell and deal in any and all necessary appliances and machinery used, or which may be acquired or deemed advisable for or in connection with the utilizing of electricity, compressed air, gas or steam, or in any wise appertaining thereto or connected therewith; to purchase, acquire, own, use, lease, let and furnish any and all kinds of machinery, apparatus and appliances; to purchase, acquire, own, hold, improve, let, lease, operate and maintain water rights and privileges and water powers to construct, acquire, build and operate, maintain and lease dams, canals, ditches, flumes and pipe lines for the conducting of water, and creating power; to acquire by purchase, condemnation or other proper methods, the right to use, employ and divert the water flowing and running in any stream or water course, not navigable in North Carolina, which may be necessary to the exercise of any of the powers of a public or quasi public character herein granted to the said corporation, and whenever it shall be necessary to divert the water from any such stream or water course to be used for any of the purposes herein provided, the said corporation shall have the right to have the value of the said water so to be diverted, and the land so to be used over which it shall be banked, ponded or conducted, condemned, and the value thereof assessed in the manner hereinafter provided for the condemnation and valuation of land and other property; to do all and everything necessary, suitable or proper for the accomplishment of any of the purposes or attainment of any one or more of the objects herein enumerated, or which shall at any time appear conducive to or expedient for the protection or benefit of the corporation, either as holder of, or interested in, any property, and in general to carry on any business whether manufacturing, mining or otherwise."

It is further provided in section 8 of the charter as follows:

"It shall be lawful for the president and directors, their agents, superintendents, engineers or others in their employ to enter at all times upon all lands or water for the purpose of exploring or surveying the lands and water required by said company for the location of any of its works or for the conducting of the business or any part of said business hereinafter authorized in paragraphs (a), (b), (c) and (d) of section five, and of locating said works, doing no unnecessary damage to private property; and when the location of said works shall have been determined and a survey of the same deposited in the office of the clerk of the superior court of the county in which the said land lies, then it shall be lawful for the said company, by its officers, agents, engineers, superintendents, contractors and others in its employ, to enter upon, take possession of, have, hold, use and excavate and fill in such lands and to erect all the necessary and suitable structures for the erection, completion, repairing and operating of said works, subject to such compensation as is hereinafter provided: Provided, however, that said company shall not enter upon or break ground upon the premises, except for the purposes of surveying, without the consent of the owner, until such owner's damages are agreed upon between such owner and said company, or ascertained by the method hereinafter provided, and such damage has been paid to such owner: And provided further, that such locating of its works and filing its surveys, in the office of the clerk of the superior court shall not preclude said company from making from time to time other location of works and filing surveys of the same, as its business and its development require; and whenever any land for the location of a dam or dams, lake or lakes, or a canal or canals, or for ponding water, or any other lands or rights of way may be required by said company for the purpose of constructing and operating its railroads, or railways, street railways or motor lines, telegraph or telephone lines or other works, or for the conducting of the business herein authorized, or any part of said business, and the said company cannot agree with the owner thereof for the purchase of the same, the same may be condemned and taken and appropriated by said company at a valuation of three commissioners, or a majority of them, to be appointed by the clerk of the superior court of the county in which the land to be condemned lies, or the clerk of the adjoining county if the land lies in more than one county."

The court submitted two issues to the jury, which, with the answers thereto, are as follows:

"(1) Did the plaintiff prior to August 21, 1914, survey, stake out, and adopt the locations for its dams, reservoirs, and public works on the Hiawassee river as alleged in the complaint and as indicated on the map offered in evidence? Answer: Yes.

(2) If so, were the plaintiffs' said locations lying on August 21, 1914, in a state of abandonment? Answer: No; they did not."

The court then proceeded to find in detail certain facts, and in order to get a fair and full understanding of the case as now presented they are here set forth:

"In this case the court, deeming it necessary and proper that the facts should be found by the court upon the evidence, in addition to the findings of the jury, by reason of the nature of the case and the relief sought herein, after due consideration of the whole evidence, finds the following facts: That the plaintiff, the Carolina-Tennessee Power Company, was chartered by an act of the General Assembly of North Carolina, being chapter 76 of the Private Laws of 1909; that subsequently, to wit, on the 25th of May, 1909, a meeting was held at Murphy, N. C., at which the charter was accepted, the company organized thereunder, by-laws duly adopted for the government of the corporation, and officers and directors elected, and the meeting of its directors was held on the 28th day of May, 1909; that some time in July, 1909, a contract was entered into with the Ambursend Hydraulic Company of Boston, Mass., looking to and providing for a survey of the water power and lands adjacent to the streams at the point on the Hiawassee river in Cherokee county which is mentioned in the complaint; that about that time, or perhaps before, this company sent T. H. Verdell, an expert civil engineer of the state of Georgia, who went upon the ground in the spring of 1909, made surveys of the lands from about the state line between North Carolina and Tennessee upon the Hiawassee river to and about a half mile up the Notla river, where he based his surveys and ran his contour of lines upon a proposed dam erection near the state line, of a height of 150 feet, and the second dam development near the mouth of Beaverdam creek on said river, of a height of 150 feet, the surveys altogether including an actual distance following the river of about 26 1/2 miles; that he laid out the contour lines, taking all the necessary measurements to the two dams 150 feet each in height, located the lines upon the ground, clearing out the undergrowth at some places where necessary, and by setting stakes from point to point along these lines of a reasonably permanent character, with the numbers and markings thereon to indicate their purpose. And the court finds as a fact, as found by the jury, that the plaintiff, for which this and subsequent work was done, did survey and stake out locations for its dams, reservoirs, and public works on this river as alleged. It finds that Mr. Verdell made reports of the two basins, called the upper and lower, and filed the same with his maps, the last one being sent in about the 18th of September, 1909, same was received by the plaintiff, and copies of his maps made, and same were subsequently used for the further purposes of the company in the prosecution of this proposed development.

The court finds further that plaintiff and those under contract with it procured Wm. H. Burr, expert civil engineer of high reputation, to...