Connor v. South Carolina Public Service Authority

• Decision Date: 15 June 1950
• Docket Number: Civ. A. No. 2455.
• Citation: 91 F. Supp. 262
• Court: U.S. District Court — District of South Carolina
• Parties: CONNOR et al. v. SOUTH CAROLINA PUBLIC SERVICE AUTHORITY et al.

91 F. Supp. 262

CONNOR et al. v. SOUTH CAROLINA PUBLIC SERVICE AUTHORITY et al.

Civ. A. No. 2455.

United States District Court E. D. South Carolina. Charleston Division.

June 15, 1950.

Savage & Marion, Camden, S. C., Moss & Moss, Orangeburg, S. C., for plaintiffs.

Robert McC. Figg, Jr., Charleston, S. C., T. B. Bryant, Jr., Orangeburg, S. C., W. D. Simpson, Moncks Corner, S. C., for defendants.

WARING, Chief Judge.

The Defendant South Carolina Public Service Authority was created by an act of the General Assembly of the State of South Carolina in 1934 which act will be found in the Code of Laws of South Carolina (1942), Sections 8555-11 to 8555-24, both inclusive. The two individual defendants are officers of the Authority. The Authority was created and given power to develop the Cooper, Santee, and Congaree Rivers as an instrumentality for commerce and navigation; to produce, distribute, and sell power; to reclaim low lands and reforest water sheds; together with various other necessary powers to exercise the foregoing general purposes. The specific project for which the Authority was created, was to erect a dam across the Santee River thereby impounding a large quantity of water in a reservoir or artificial lake; to construct a diversion canal to carry water from this lake to a basin situate near the headwaters of the Cooper, which basin was made by building additional dams and dikes; and the erection of a power house for the purpose of generation of hydroelectric power. The dams were to be constructed with locks so that navigation could be had from the Port of Charleston, up the Cooper River through canals and artificial lakes into the Santee River and thence through the Congaree River and eventually to the City of Columbia. The Authority was declared to be a "corporation completely owned by and to be operated for the profit of the people of South Carolina". It was given power "to sue and be sued". The Authority has carried out these plans, and the plant is in operation.

The Plaintiffs in this cause, one a citizen of South Carolina and the other a nonresident, are owners of large tracts of land alleged to be of considerable value and clearly in excess of $3,000.00 exclusive of interest and costs, and these lands adjoin or are situate quite close to some of the territory flooded or controlled by the Authority. Plaintiffs allege that due to the construction, maintenance and operation of the Authority's project, they are suffering great loss and damage because of the rise in the water level caused by impounding of these river waters by the Authority so that their lands or portions of them are, at times, flooded, and, at other times, rendered moist and soggy and thereby ruined or damaged for agriculture or other purposes. They allege that they are suffering irreparable damages which cannot be adequately compensated by any money damages, and they further allege that the Authority is acting beyond the scope and power granted to it for the impounding of waters according to the license held by the Authority which was heretofore granted by the Federal Power Commission giving the Authority the right to maintain dams and generate and distribute electric power. And specifically, it is claimed that this license by the Federal Power Commission gives to the Authority the right to impound and maintain water up to seventy-five feet above sea level, but that in so doing, the Authority injures Plaintiffs' lands in a way and manner not contemplated by the maintenance of such a head of water, and the proper steps should be taken, if such a water level is to be maintained, to protect Plaintiffs' lands from suffering from the effect thereof. The Complaint goes further and alleges that from time to time the Authority exceeds this right to maintain water seventy-five feet above sea level and that it impounds water at a much higher level which increases the injuries to Plaintiffs' lands; and Plaintiffs take the position that the Authority has no right to have the water at this high level.

The suit is one brought on the equitable side of the Court, and the prayer is for relief by injunction to require the Defendant to reduce the water level and to take such other or necessary steps as may be adequate and proper to relieve the Plaintiffs of the burden now imposed upon them.

The Defendants appeared and filed a motion to dismiss on the ground that the Court is without jurisdiction to entertain this action since a suit of this kind cannot be maintained against the Authority which is an instrumentality of the State. It takes the position that such an instrumentality like the State or any of its political subdivisions is not subject to an action ex delicto. And it maintains that this suit is not one brought for the taking of the property of the Plaintiffs but instead is for the purpose of enjoining the Authority from committing acts that are alleged to be torts.

The Courts have had occasion, from time to time, to consider the nature and character of the South Carolina Public Service Authority, but the most recent and binding declaration on this point is the Opinion of the Supreme Court of South Carolina filed April 18, 1950 in the case of Rice Hope Plantation v. South Carolina Public Service Authority, S.C., 59 S.E.2d 132, 138. Since the Act creating the Authority is a part of the statutory laws of South Carolina, the construction of such an act by the Supreme Court of South Carolina must be accepted. In that case, the Court definitely states that the power of the Authority to sue and be sued given by the Act "cannot reasonably be construed to authorize an action ex delicto". The Court refers to the case of Chick Springs Water Co. v. State Highway Dept., 159 S.C. 481, 157 S.E. 842, which established the doctrine that the proper remedy where private property is taken for public use is an action at law to recover just compensation. In the Rice Hope case, it is pointed out that the Plaintiff urged (as do the Plaintiffs here) that the Authority, having obtained a license from the Federal Power Commission, had subjected itself to all the requirements of the Federal Power Act, 16 U.S.C.A. § 791a et seq., and that, therefore, it has become pecuniarily liable for damages occasioned to the property of others by its acts. But the Court well says that the fact that the Authority is licensed under the Federal Power Act does not devolve upon it a "newly created liability" but that it merely means that if there is a legal liability, it is that of the licensee and not of the Federal Government. And, as a matter of fact, the Federal Power Act is quite specific. See 16 U.S.C.A. § 791a et seq. A careful reading of all the provisions of the Federal Power Act and of the cases that have arisen thereunder readily convince one of the soundness of the holding of the South Carolina Supreme Court on that phase of the case. The argument urging that the acceptance of a Federal license to manufacture power will impose new obligations while ingenious is not sound. It is quite clear that the Federal Power Act had no intendment of creating any new obligations on any person accepting a license except that it imposed upon the licensee the duty to obey and carry out the terms of the Federal Power Act and of the rules, regulations and decisions of the Commission. The various provisions for complaints to the Commission, for investigations and hearings, for the Commission to call upon the Attorney General to take action for the revocation of licenses, for forfeiture and for the right to go into the Federal Courts, are all rights and powers given for the protection of the Federal Government and the Commission created by the Act. And the sole responsibility put upon the licensee in regard to the rights of others is that if any party shall have any claim or right by reason of injuries arising from the use of the license, the licensee alone shall be responsible.

And so it follows quite clearly that the licensee here must be responsible for any injury or damage that it has created to the property of others irrespective of the Federal Power Act. And if it were a private corporation, we would not hesitate to say it could be sued for damages for tortious acts. But the Authority created by the State of South Carolina is declared by the State of South Carolina speaking through its Supreme Court to be such an agency or part of the state government as to be exempt from liability for tort and that being clear, and also that no additional liability is created by the Federal Power Act, we feel justified in definitely stating that the Authority cannot be held responsible for any damages arising from its torts.

Let it be understood distinctly that this suit is in no sense one for compensation for the alleged appropriation or taking of Plaintiffs' lands and as to whether the Plaintiffs have a right of action in this respect is not passed upon or considered. And the Court expressly refrains from discussing the same in this opinion.

And so we come now to the exact question propounded. Has this Court the right, power, and jurisdiction to grant equitable relief assuming that the allegations made by the Plaintiff are true and can be sustained?

Assuming for the purpose of argument in this case that the Authority is limited by its license to impounding water up to the level of seventy-five feet, are the Plaintiffs entitled to relief by a bill in equity because of the fact that the raising of water to such a level has infringed their rights and injured their lands? The cases are numerous holding that Plaintiffs in such plight have a right to compensation and a taking for public use. The Fifth Amendment of the Constitution of the United States provides: "nor shall private property be taken for public use, without just compensation." Article I, Section 17 of the Constitution of South Carolina is as follows: "Private property shall not be taken for private use without the consent of...