John P. King Mfg. Co v. City Council Of City Of Augusta, (No. 5624.)

• Decision Date: 13 May 1927
• Docket Number: (No. 5624.)
• Citation: 138 S.E. 159,164 Ga. 306
• Parties: JOHN P. KING MFG. CO. v. CITY COUNCIL OF CITY OF AUGUSTA et al.
• Court: Georgia Supreme Court

164 Ga. 306

138 S.E. 159

JOHN P. KING MFG. CO.

v.CITY COUNCIL OF CITY OF AUGUSTA et al.

(No. 5624.)

Supreme Court of Georgia.

May 13, 1927.

(Syllabus by the Court.)

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Equitable petition by the John P. King Manufacturing Company against the City Council of the City of Augusta and another. Judgment for defendants, and plaintiff brings error. Affirmed.

Bryan Cumming and Cumming & Harper, all of Augusta, for plaintiff in error.

Archibald Blackshear and Callaway & Howard, all of Augusta, for defendants in error.

HILL, J. The John P. King Manufacturing Company brought an equitable petition against the city council of Augusta and Julian M. Smith, mayor, to enjoin the city from enforcing an ordinance adopted August 24, 1924, fixing the rate and price of water power furnished its customers from the Augusta canal for the period beginning March 7, 1926, and ending March 7, 1936, at $11 per horse power for day use and $3.50 per horse power for night use, per annum. The application for injunction applies only to 1, 244.3 horse power, which the plaintiff claims that it has the right to use in perpetuity at the former rate of $5.50 per horse power for day use. The 1, 244.3 horse power is the amount of power which the plaintiff began to use and take from the canal, according to its petition, on December 1, 1883, upon the completion of its cotton mill. The plaintiff also prayed for an injunction enjoining the defendants from contracting away to any other person the water power, or with interfering with the plaintiff's right to the same. A temporary restraining order was granted, and the city council of Augusta made response by way of demurrer and answer. The case came on to be heard on the petition, demurrer, answer, and evidence submitted by affidavits by the parties. The judge rendered a judgment denying an injunction, and also sustained the demurrer, and dismissed the petition. To these judgments the plaintiff excepted.

The controlling question in the case was whether the city of Augusta had theretofore entered into a contract with John P. King Manufacturing Company to supply it with water power at the specified rate of $5,50 per horse power per annum in perpetuity, or had made a grant to the plaintiff of the right to have a certain water power for a specified rate, which right, under all the surrounding facts, the city was estopped from withdrawing. It therefore becomes necessary to determine whether, from the allegations of the petition and the evidence, there was a grant or a contract between the parties as to the duration of the contract. The record discloses, in substance, that the Augusta Canal Company was organized as a private corporation, with power to construct a canal and operate the same by furnishing water power to manufacturing establishments located on or adjacent to the canal, and that the city council of Augusta, under proper legislative authority, became the successor in title to all the property and franchises of this private corporation. After the city of Augusta had thus acquired the Augusta canal properties, the promoters of the John P. King Manufacturing Company made a verbal application to the mayor of the city of Augusta for information as to the terms upon which water power could be obtained from the Augusta canal. To this application the then mayor of Augusta replied by letter on July 17, 1877, as follows:

"The city council will furnish water power from the Augusta canal under the usual restrictions to the extent of, say, 2, 500 horse...