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

• Decision Date: 21 June 1924
• Docket Number: 590.
• Citation: 123 S.E. 312,188 N.C. 128
• Parties: CAROLINA-TENNESSEE POWER CO. v. HIAWASSEE RIVER POWER CO.
• Court: North Carolina Supreme Court

123 S.E. 312

188 N.C. 128

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

No. 590.

Supreme Court of North Carolina

June 21, 1924

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

Special condemnation proceedings by the Carolina-Tennessee Power Company against the Hiawassee River Power Company. Judgment for petitioner, and defendant appeals. No error.

Judgment of a court having jurisdiction of the parties and subject-matter binds all the parties and their privies as to all issuable matters embraced in the pleadings and all material matters within the scope of the pleadings which were in fact investigated and determined.

Petitioner was incorporated by Priv. Laws 1909, c. 76.

Special proceeding to condemn lands and water rights on the Hiawassee river in Cherokee county, for use of petitioner in connection with a water-power development or hydroelectric plant.

The matter was heard before the clerk, who appointed commissioners to assess the value of the lands condemned, as provided by C. S. 1720; said commissioners in due course made their report, which was confirmed by the clerk on February 14, 1923. Defendant appealed to the superior court in term.

Upon the hearing, a jury trial was waived, and it was agreed that the judge should hear the evidence, find the facts, and render judgment accordingly. From the judgment entered in favor of petitioner, the defendant appeals, assigning errors.

J Crawford Biggs, of Raleigh, for appellant.

Martin Rollins & Wright, of Asheville, for appellee.

STACY J.

This case is only another branch of the same litigation which has been going on between these parties for a number of years. Caro.-Tenn. P. Co. v. Hiawassee River P. Co., 186 N.C. 179, 119 S.E. 213; Id., 175 N.C. 668, 96 S.E. 99; Id. 171 N.C. 248, 88 S.E. 349.

In 1909, the petitioner, through its officers, engineers, and other representatives, entered upon, explored, and surveyed certain lands and water rights in and along the Hiawassee river, in Cherokee county, N. C., not declared by law to be navigable, and marked upon the ground the location of its route for waterpower development and adopted the same by authoritative corporate action. The proposed location of said works, dams, flumes, power plants, and other structures extends for a considerable distance up and down the Hiawassee river and covers what is spoken of on the record as two basins or reservoirs--one known as the upper reservoir and the other as the lower reservoir. Thereafter on June 21, 1911, the Carolina-Tennessee Power Company filed and deposited in the office of the clerk of the superior court for Cherokee county, surveys, maps, and plats showing the proposed location of said works and the lands necessary for their successful operation.

The location of petitioner's proposed works, dams, etc., for the development of water power and the generation of electricity, described in the petition and amended petition in this cause, is the same as the location of the proposed works, dams, etc., described in the record and judgment in the case brought by the Carolina-Tennessee Power Company against the Hiawassee River Power Company and reported in 186 N.C. 179, 119 S.E. 213; the only difference being that in the reported case the lands and water rights, there sought to be condemned, were located in what is known as the upper reservoir, while the lands and water rights, here sought to be condemned, are located in what is known as the lower reservoir; both said upper and lower reservoirs being covered by the one location as marked out and staked off by the petitioner in 1909. Hence many of the questions now presented were considered and determined by us in the case just mentioned. The two cases involve the same development, the same location, and the same improvement; the parties are the same, the only difference being in the tracts of land sought to be condemned in the two actions.

The defendant company was not organized until 1914, several years after the petitioner had staked out the lands in question and adopted its route in accordance with the provisions of its charter. But defendant contends that it has now acquired sufficient territory and water rights within the "lower reservoir" to constitute an independent water power which is not subject to condemnation by the petitioner.

As between the Carolina-Tennessee Power Company and the Hiawassee River Power Company, the right, as well as the prior right of the petitioner, to condemn the lands in dispute and to acquire them for use in its hydroelectric or water-power development must be considered as settled by our former decisions. In the absence of unreasonable delay or evidence tending to show a want of good faith, or abandonment of its purpose on the part of the petitioner, or some specific legislative authority granting such right, the defendant may not acquire a water power within the water power already marked out by the petitioner, and thus destroy the petitioner's superior rights. This would be to allow a smaller water power to swallow up a larger one, and there is nothing on the present record to warrant such a procedure.

The general questions we are now considering were so thoroughly examined and dealt with in the carefully prepared opinion of the present Chief Justice in Street Ry. v. Railroad, 142 N.C. 423, 55 S.E. 345, 9 Ann. Cas. 683, that little, if any, more, need be said on the subject. It was there held that, in the absence of statutory regulations to the contrary, the prior right belongs to that company "which first defines...