Great Falls Power Co. v. Webb

• Court: Supreme Court of Tennessee
• Writing for the Court: Green
• Citation: 133 S.W. 1105
• Decision Date: 28 January 1911
• Parties: GREAT FALLS POWER CO. v. WEBB.

133 S.W. 1105 GREAT FALLS POWER CO.
v.
WEBB. Supreme Court of Tennessee. January 28, 1911.

Page 1106

Appeal from Circuit Court, Warren County; Ewin L. Davis, Judge.

Petition by the Great Falls Power Company to condemn land of John H. Webb. From a judgment overruling a demurrer to the petition to condemn, defendant appeals. Affirmed.

Chester K. Hart, for appellant. Robinson & Fancher, Jno. R. Aust, Dan E. McGugin, and M. D. Smallman, for appellee.

GREEN, J.

In this cause the effort of the Great Falls Power Company to exercise the right of eminent domain is challenged.

This company was organized under the general corporation laws of Tennessee, and more especially under chapter 144, Acts 1901, chapter 151, Acts 1909, and chapter 127, Acts 1909.

Without pausing to enumerate or discuss the various powers conferred on this corporation by its charter, we find that, among others, it is endowed with authority to develop the "water powers of the rivers and streams of this state, whether in fact navigable, or by law declared navigable; to manufacture electricity to be used for making electric lights, furnishing motive powers, electrotyping, telephone purposes, or for any other purpose to which electricity is now or may hereafter be applied in any manner or form whatever; and more particularly for developing the water power of the Great Falls on the Caney Fork river, on the line between White and Warren counties, in the state of Tennessee, the conversion of the same into electrical energy and the transmission thereof by wires and conductors to the following towns and cities in Tennessee, viz.: Murfreesboro, Carthage, Lebanon, Shelbyville, McMinnville, Columbia, Franklin, Chattanooga and Nashville; and for this purpose said company is hereby authorized and empowered and invested with the privilege of constructing, maintaining and operating, in such rivers in this state, dams, piers, sluiceways, canals, locks, ponds, breakwaters, abutments and mill sites for manufacturing purposes, upon the following provisions and conditions."

It filed its petition to condemn certain lands of defendant, by virtue of the authority conferred upon it by the acts under which it was incorporated. To this petition a demurrer was filed, and, the same being overruled, an appeal was taken by defendant to this court. The parties agreed on the value of the land, in the event petitioner's right of condemnation was established in this court, so that the trial court allowed the appeal without further proceedings.

In the petition for condemnation, it was said:

"(3) That your petitioner is now, and has been since the year 1901, engaged in developing and improving the water power of the Caney Fork and Collins rivers and their tributaries in White, Warren, and Van Buren counties, in the state of Tennessee, and more particularly the water power of the Great Falls of Caney Fork river just below the mouth of Collins river.

"And your petitioner then proposes, among other things, to transfer said electricity by means of transmission lines to the cities of Murfreesboro, Woodbury, and Nashville, and other cities and towns in the state of Tennessee, to be sold to said cities and towns for the purpose of lighting the streets thereof, and to be sold to all citizens thereof who may wish such current at a uniform and reasonable rate. And your petitioner has a franchise from the city of Nashville for a term of 35 years, beginning September 10, 1911, and said franchise provides for the furnishing of electric lights to the city of Nashville and to citizens thereof. * * *

"(7) That the object for which the lands and premises above described are desired to be acquired and wanted by petitioner are as follows:

"Said petitioner proposes to erect a dam at, near, or slightly above the Great Falls of the Caney Fork river, partly in said White county and partly in Warren county, whereby it will raise the waters of the said Caney Fork river and said Collins river and their tributaries, so as to obtain a proper and sufficient head of water for the development and generation thereby of power and electricity, and the premises so wanted will, with other premises, be required for the purpose of taking care of the back flows and storage water so dammed, and for the use in connection with the necessary and proper maintenance and operation of the works proposed to be erected in connection with the development of said water power properties, and the further objects and uses are more fully set forth in section 3 above.

"And it is absolutely necessary and essential that your petitioner have said lands in order to improve and develop said water

Page 1107

power, and to carry out the uses and purposes above set forth, and as set forth in section 3 above.

"That it is the intention of your petitioner in good faith to complete the work or improvement for which the property is to be condemned, and that all the preliminary steps required by law have been taken to enable it to institute the action or proceeding. Your petitioner has endeavored to purchase said land, but did not agree with the owner on the price."

Appellant relies on the same defense here which he interposed by demurrer below. The grounds of this demurrer will be stated and discussed separately.

The first two grounds of demurrer are akin and are:

First. "Because the acts under which plaintiff claims to be chartered and organized are violative of article 1, § 21, of the Constitution of Tennessee, in that it seeks to take and appropriate defendant's property for private use."

Second. "Because the charter of the plaintiff shows that its purposes and uses are private, and not public."

It thus appears from the allegations of the petition, which on the demurrer are taken as true, that the company wishes to obtain this land for the purpose of taking care of the back flow of the waters caused by its dams, which it proposes constructing to obtain a sufficient head of water to operate its electrical works. By means of this water power, so conserved, the petitioner proposes to generate electricity for the use and benefit of the public, and, "among other things, to transfer said electricity by...