Georgia Power Co. v. Tennessee Valley Authority

• Citation: 14 F. Supp. 673
• Decision Date: 28 May 1936
• Docket Number: No. 126.,126.
• Parties: GEORGIA POWER CO. v. TENNESSEE VALLEY AUTHORITY et al.
• Court: U.S. District Court — Northern District of Georgia

14 F. Supp. 673

GEORGIA POWER CO. v. TENNESSEE VALLEY AUTHORITY et al.

No. 126.

District Court, N. D. Georgia, Atlanta Division.

May 28, 1936.

Colquitt, MacDougald, Troutman & Arkwright and Harlee Branch, all of Atlanta, Ga., Barry Wright, of Rome, Ga., and Grady Head, of Ringgold, Ga., for complainants.

James Lawrence Fly, William C. Fitts, Jr., and Julian C. Chambers, all of Knoxville, Tenn., for defendants TVA.

SIBLEY, Circuit Judge.

The original bill removed from a state court seeks to enjoin Tennessee Valley Authority and Catoosa Farmers Co-operative Association, as trespassers, from putting wires for transmitting electricity above and across the wires of petitioner, to enjoin them and certain individuals from making false and fraudulent representations about the petitioner's business, and from attempting to organize a boycott of it. An amended bill seeks to enjoin the TVA from constructing any transmission or distribution lines in Georgia, especially any over state properties or highways to do a business in competition with petitioner, and to enjoin the other defendants from purchasing power from TVA; and for a declaration that the attempted business in Georgia of TVA is illegal, as being beyond any authority conferred on it by Congress and beyond federal constitutional power. The general contention is that TVA has no source of power in or near Georgia, and intends to purchase power from Tennessee Electric Power Company and distribute it in Georgia without the consent of the state and without submitting to the jurisdiction of the Georgia Public Service Commission or the payment of taxes, and that it is seeking unlawfully to take away the customers of petitioner, such activities being beyond the power given by Congress and beyond the power of Congress to give. The Tennessee Valley Authority alone has answered. Besides denying most of the allegations concerning it, it asserts that it is selling surplus power arising at Wilson Dam, but expects in a few years to have more arising at other dams nearer to Georgia; that the northwest Georgia territory here in question was refused service by the petitioner, Georgia Power Company, until TVA was approached by towns and farmers therein to sell them electric current and TVA agreed to furnish it, when activity of petitioner first began in the rural section; that the line under construction is to be fed temporarily by exchange of current with Tennessee Electric Power Company as already arranged for, but ultimately by lines of TVA connecting directly with its dams. The line is to be turned over to North Georgia Membership Corporation, a nonprofit co-operative association, so soon as the latter, already chartered, shall be organized, under a long-time purchase contract. It admits that it claims not to be subject to taxation or regulation by the state of Georgia, but denies that it has attempted or authorized any interference with petitioner's contracts with customers or sought to organize any boycott against it or trespassed in any manner upon its property or rights.

Findings of Fact.

The evidence is in many points incomplete and unsatisfactory. The answer is not sworn to and operates only as pleading. The facts can be stated only tentatively and for present purposes. Georgia Power Company has a franchise to make and sell electric power throughout the state, has made a large investment, and has given good service at low rates compared to many others. It has not an exclusive franchise, but there are other companies operating in parts of the state and all are subject to competition. Rates to consumers are fixed by the Georgia Public Service Commission and cannot be departed from except by leave of the commission. The Georgia Power Company has been and is rendering service to a number of towns in the northwest part of the state, but had declined before 1935 to put in rural lines there. During 1935 individuals and towns in that territory sought to get electric current from TVA, which consented to supply them. After this the power company became active in extending its lines, and there has arisen an acute and even bitter rivalry touching which source of power shall be used. It is probable that untrue statements have been made and unfair efforts to upset rights of way and service contracts by persons on both sides, but the evidence does not establish authorization or knowing ratification by the power company or by TVA. As to the crossing of the transmission lines, the Georgia Power Company has a first-acquired right of way easement over the lands of one Russell and first erected its line. The easement is not expressed to be exclusive. Russell later gave a similar easement to TVA crossing the former. There is a contention that the crossing really takes place over an old roadway, the title to which is in the United States, but the evidence is not clear that this is true. There will be no actual interference by one wire with the other if they are properly installed and maintained. The wires of TVA have been put across the Western & Atlantic Railroad, which belongs to the state of Georgia, and across certain highways owned in fee by the state without asking the state's consent but without objection being made. Rights of way have been obtained as to all privately owned land. The Tennessee Valley Authority has surplus current at Wilson Dam and an arrangement for delivering it to Tennessee Electric Power Company there in exchange for like amounts of current less transmission losses at Oultawah, Tenn., at which point the TVA transmission line in Georgia ends. There is no proper proof of TVA's future intention as to other...