Indiana Power Co. v. St. Joseph & E. Power Co.
| Decision Date | 06 June 1902 |
| Citation | 64 N.E. 468,159 Ind. 42 |
| Parties | INDIANA POWER CO. v. ST. JOSEPH & E. POWER CO. |
| Court | Indiana Supreme Court |
On petition for rehearing. Petition denied.
For original opinion, see 63 N. E. 304.
And afterwards, to wit, on June 6, 1902, being the 11th judicial day of the May term, 1902, the court, being fully advised in the premises, overrules the petition for a rehearing heretofore filed herein by the appellant, with the following opinion:
A very careful re-examination of the points decided in this case has been made in connection with the briefs upon the petition for a rehearing. We have discovered no ground for any modification of the opinion heretofore announced. It is indisputable that the appellant had the right to sell or otherwise dispose of the lands acquired by it by purchase, and to abandon its enterprise. It is equally evident that, under the statute authorizing the organization of companies for hydraulic purposes, the only public and unequivocal act by which such companies are empowered to indicate their intention to devote lands to a corporate and public use is by filing their instrument of appropriation in the office of the clerk of the county where the lands are situated. In the case before us, while the appellant was a hydraulic company, and had purchased lands in the vicinity of the St. Joseph river, it had built no dam, nor had it begun the construction of such a work, further than to cause surveys to be made, plans to be prepared, and stakes to be set out for the guidance of its workmen. The point is now made for the first time that the instruments of appropriation were insufficient because they failed to show the consent of the federal authorities to the construction of the proposed dam across the St. Joseph river, that river being a navigable stream. This point was not included in the original statement of points nor referred to in the briefs on the hearing, and for that reason it cannot be considered at this time. Rule 22 (55 N. E. v); Armstrong v. Hufty, 156 Ind. 606, 630, 55 N. E. 443, 60 N. E. 1080.
Petition for a rehearing overruled.
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