Lease by State—Rescission—Necessary Parties —Lease of Water Power—Validity —Rights of Lessee.
1. Where, in a suit for an injunction, it appears that the state is an indispensable party, the court has no jurisdiction of the suit, on refusal of the state to appear.
2. The state conveyed to plaintiff's grantor a canal and all appurtenances, reserving to itself the right to a certain amount of water power therefrom, and subsequently leased to defendant the right to the use of such power. Part of the consideration of the lease was that defendant should deliver for the use of the penitentiary a portion of the power. Held that, in a suit by plaintiff against defendant to avoid the lease and to enjoin the maintenance of cer
tain buildings necessary to the application of the power, the state was an indispensable party.
3. Where, in an action at law for injuries to plaintiff's land, defendant defends under authority of a lease from the state, the state is not an indispensable party, so as to deprive the court of jurisdiction, on refusal of the state to become a party.
4. The state conveyed by legislative act to plaintiff's grantor a canal and appurtenances, reserving to itself the right to the use of a certain amount of water power, which the act declared should be "absolute." Subsequently the legislature affirmed a lease by the state of its water right. Held, that such right was a right of profit a prendre, independent of any interest in land, and was therefore leasable.
5. The lessee of the right to the use of a certain amount of water power from a canal may erect, on the banks of the canal, in addition to the water plant necessary to make use of the power, a steam plant essential to the use of the water plant.
Appeal from common pleas circuit court of Richland county; J. H. Hudson, Judge.
Action by the Columbia Water-Power Company against the Columbia Electric Street-Railway, Light & Power Company to enjoin defendant from using buildings erected upon the land claimed by plaintiff, to require it to remove the buildings from it, and to recover damages for the unlawful use of this land. From a decree dismissing the complaint, plaintiff appeals. Affirmed.
The suggestion, decree, and exceptions referred to in the opinion were as follows:
Suggestion.
"And now comes the attorney general of the state of South Carolina, and suggests to the court, and gives it to understand and be informed (appearing only for the purpose of this motion), that the state of South Carolina is not a party to this action, and declines to become a party, or to submit herself in any way to the jurisdiction of her own court. And the said attorney general doth further suggest and bring to toe attention of this honorable court that the defendant aforesaid is in possession of the strip of land described in the complaint, by lease or license from the state of South Carolina, under agreement made between said defendant and the board of directors of the South Carolina Penitentiary, on the 26th day of May, 1892, herewith exhibited to the court, and approved and ratified by an act of the legislature of said state entitled 'An act to ratify and confirm the contract made and entered into by and between the directors of the South Carolina Penitentiary and the Columbia Electric Street-Railway, Light & Power Company, ' etc., approved December 24, 1892; that the said strip of land was purchased for the use of said penitentiary on October 18, 1866, from Thomas J. Rawls, and confirmed to the uses of said state penitentiary by an act entitled 'An act to devote certain public lands to the use of the board of directors of the state penitentiary, ' approved February 9, 1882; that the power-generating works of the defendant corporation are built upon saidstrip of land, and are being now used in part in supplying power to said state penitentiary for operating necessary machinery within its walls, under the agreement aforesaid. And the said attorney general doth further suggest and show to this court that, if the injunction prayed for in the complaint be granted, the defendant will be prevented from carrying out its said agreement with the state of South Carolina, and the said state, without a hearing in the cause, will be deprived of the water power she is entitled to, in the manner she has contracted for, and of the revenue she has secured, by and under the said agreement, for the period of thirty years. Wherefore, without submitting the rights of the government of the state of South Carolina to the jurisdiction of the court, but respectfully insisting that the court has no jurisdiction of the subject in controversy, he asks that the said complaint be set aside, and all other proceedings in the cause stayed and dismissed. D. A. Townsend, Attorney General South Carolina, per Buchanan."
Decree.
"This cause came on to be heard before me at the present term of the court, and has been fully argued. As to the question raised that the court has no jurisdiction, because that the state is an indispensable party, this plea is overruled. The court has jurisdiction. The defendant is a lessee of the water power reserved by the state, and the court can construe a contract made between the defendant and the state, whereby it is claimed that the rights of the plaintiff have been affected. The door is not shut to plaintiff because of the contract with the state. The state has a right to come in if she so wishes; but she declares that she will not come in, and the cause can be heard without her presence. As to the Rawls deed, that deed conveys the property to the state; but subsequently the state conveyed the canal property to the plaintiff, and thereby conveyed in fee all of the property known as the 'Canal Property, ' including its banks, as it existed at the time of the conveyance; and at the time of the act of 1887, and of the conveyance made thereunder, the canal property covered the land upon which the defendant's works are erected. Plaintiff acquired its rights under the act of 1887. It is not the grantor of anything to the state, but the state has reserved out of its grant five hundred horse power of water power, and that much plaintiff did not purchase. The whole question turns on the reserved right of the state. The defendant holds a lease from the state, and the contract made by defendant with the board of directors of the state penitentiary, approved and ratified by the state, has given to the defendant all of the rights which the state had in that five hundred horse power. In the act of 1887 there is a distinct reservation of an absolute right to the state of five hundred horse power of wa
ter power. Call it an easement, or what you will, it is absolute. Now, can the state dispose of it? Unquestionably she can. She can develop it. She can erect the necessary buildings for its utilization, and can utilize it. She may do it in any way she pleases. She may use old wheels, or she may use new and improved methods, and may resort to electricity, which is now generally regarded as an improved method of transmitting water power. Therefore there is no objection to the electric plant erected by the defendant under its contract with the state. Now, can the state lease its power, and permit the lessee to use it, and supply the state at the cost of the lessee? I think it can. The state is not always ready for carrying on such work. Therefore she could lease it; and, in this particular case, the state gets, or may get, one hundred horse power, and the lessee the balance. This being a consideration moving to the lessee, the lessee can devote that consideration to its own use. Therefore, under the act, the defendant, as lessee of the state, has the unquestionable right to put the electric plant on the banks of the canal of the penitentiary, and to carry out the contract which has been made between it and the state of South Carolina. Now, has the defendant the supplementary right to put in a steam plant? Prudence and foresight justify its erection on the banks of a canal along a river where freshets come, and, where time is important, there might be serious interruption to the industries of the defendant company, and thus of the penitentiary. Therefore the defendant has a right to use so much steam plant as is necessary to supplement its water power, at such times as the water power is unavailable by reason of freshets or necessary repairs to the canal or other causes. The dam may break, rains may swell the river, and there might be a long interruption to the use of the water power, and it would be necessary to resort to the steam plant to carry on the work. It is common to use steam as an adjunct to water-power plants. The defendant cannot erect any more steam plant than is necessary for it to use as a supplement to the water power which it has received from the state. I therefore hold that there has been no violation of the state's contract with the plaintiff. That reservation of the state's water power is a part of the contract made with the plaintiff, and that reservation is absolute. Therefore I hold that the complaint must be dismissed. It is therefore ordered and adjudged that the complaint be dismissed. November 11, 1893. J. H. Hudson, Presiding Judge."
Exceptions.
"Plaintiff excepts because his honor, the presiding judge, erred in holding: (1) That there is a valid lease of the water power reserved by the state. (2) That a valid contract was made between the defendant and the state. (3) That all of plaintiffs rightswere acquired under the act of 1887. (4) That defendant is the lessee of a valid lease from the state. (5) That the contract made by defendant with the board of directors of the state penitentiary, approved and ratified by the general assembly, has given to the defendant all of the rights which the state had in the five...
