Manigault v. S.M. Ward & Co.

• Decision Date: 22 June 1903
• Citation: 123 F. 707
• Parties: MANIGAULT v. S. M. WARD & CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

123 F. 707

MANIGAULT v. S. M. WARD & CO. et al.

United States Circuit Court, D. South Carolina.

June 22, 1903

Mitchell & Smith, for complainant.

Theodore G. Barker, for defendants.

SIMONTON Circuit Judge.

On 3d March, 1903, the General Assembly of South Carolina passed an act to authorize the construction of a dam across Kinloch creek, in Georgetown county. 24 St.at Large, p. 246. The preamble of the act recites the necessity of constructing a dam across Kinloch creek in order to drain certain lowlands in the county of Georgetown subject to overflow by reason of high tides and freshets in Santee river; that the construction of the said dam is the only feasible means of draining said lands that the lands bordering on said stream are nearly entirely owned or controlled by A. A. Springs and St. J. M Lachicotte, copartners in business as S. M. Ward & Co.; that it is their purpose to construct a good and sufficient floodgate in said dam. Now, in order to remove any doubt as to the authority of the said S. M. Ward & Co. to erect construct, and maintain said dam, the right, power, and privilege is given to the said Springs and Lachicotte, copartners as S. M. Ward & Co., their heirs and assigns, and the survivors of them or either of them, to construct, erect, and maintain a dam across Kinloch creek 'provided that the said A. A. Springs and St. J. M. Lachicotte, doing business under the firm name of S. M. Ward & Company, shall be liable for all damages as may be established in any court of competent jurisdiction by any landowner claiming that his land has been damaged by reason of the erection of said dam. ' This act having been passed and approved, the complainant, Arthur M. Manigault, filed his bill of complaint in this court against Springs and Lachicotte, seeking an injunction against them restraining the exercise by them of the right, power, or privilege given them in this act. After alleging that the bill is within the pecuniary jurisdiction of this court, the matter in controversy exceeding the value of $2,000 exclusive of interest and costs, the bill states: That the complainant is the owner of a valuable rice plantation situate on North Santee river, bordering partly on Minim creek, and lying in part just opposite the mouth or entrance of Kinloch creek; and that he is also the owner in fee of a valuable mill site situate on Santee river on the waters of Bluff Back creek, a branch of Kinloch creek. That Kinloch creek is a navigable stream and water highway capable of navigation by vessels therefrom into Santee river, thence to the ocean, and to all parts of the United States or the world. Not only so, but it connects at one point with the main state highway leading from the upper part of the upper portion of the state down Santee river, and that there is a public landing at the point at which Kinloch creek is connected with the said state highway, so making a continuous highway from the same over the navigable waters of Kinloch creek to the main state road, and so to the upper country. That in August, 1898, complainant was the owner of the valuable lands above spoken of, lying opposite to the mouth of Kinloch creek, and F. W. Ford was the owner of certain rice lands in the upper end of Kinloch creek. That at that time the defendants had already erected a dam across Kinloch creek, an obstruction to the navigation thereof, and that Ford and himself, conceiving themselves injured thereby both in the planting of their lands and the use of the creek, desired the obstruction to be immediately removed, and gave notice thereof to the defendants. Long negotiations followed, the result of which was an agreement under seal between Lachicotte and Springs on the one part and complainant and Ford on the other, whereby, in consideration that complainant and Ford would consent that the dam remain until the 31st of December, 1898, complainant and Ford could remove the obstruction, and Kinloch creek would thereafter be kept open and free and clear from all or any part of such obstructions without let or hindrance, objection, or molestation whatsoever in act or procurance by Lachicotte and Springs, their agents, servants, or employes. That, relying on this agreement, complainant purchased the mill site on Santee river, which could be used for a ricemill or sawmill, the chief element of the value of which was its water connection by means of canal through Bluff Back creek with Kinloch creek, and the consequent necessity for keeping Kinloch creek open and unobstructed. So the erection or retention of the dam across Kinloch creek will injure complainant both by the interruption of the use of Kinloch creek and Bluff Back creek, and by preventing access to the public landing on the state road from his plantation on Kinloch creek, and also by obstructing the inflow of the tide from Santee river through Minim creek, which otherwise would have access into Kinloch creek, thus compelling him to strengthen and raise his banks. The bill then avers that the act of the state of South Carolina above recited authorizes the defendants to construct a dam across Kinloch creek, and so act in direct contravention of their contract under seal, and that it also enables them to close a public highway for their own private purposes; that the said act of the state of South Carolina violates article 1, § 10, of the Constitution of the United States, inasmuch as it impairs the obligation of a contract; that it also violates article 1, Sec. 28, of the Constitution of the state of South Carolina, and section 1, art. 14, of the same Constitution, which declares all navigable waters shall forever remain public highways free to all citizens and inhabitants; that it violates section 1, art. 14, of the Constitution of the United States, in that it deprives him of his property without due process of law; that the closing of Kinloch creek is the taking of private property for private use, without consent of the owner, and without compensation, in violation of section 17, art. 1, of the Constitution of South Carolina, and also in violation of section 10, art. 1, and section 1, art. 14 of the Constitution of the United States; that said act is a local and special law altering a highway in contravention of section 34, art. 3, of the Constitution of South Carolina, forbidding the General Assembly to enact special or local laws on certain subjects, among them to lay out, open, alter, or work roads or highways; that the act of the General Assembly aforesaid grants a privilege or immunity, and is for a private purpose, and so was passed in contravention of section 31, art. 3, c. 2, of the Code of Laws of South Carolina of 1902, which declares that no bill of this character shall be introduced or entertained in either House except by petition signed by the parties seeking the privilege or immunity for the private purpose, which petition shall set forth fully and distinctly the merits and particulars of the case, and, if the same in any wise affects the rights of others who reside in this state, the petition must be accompanied by proof that such parties have had 60 day's notice of the presentation of said petition, and that notice of intention to present such petition be advertised once a week for at least 3 weeks in a newspaper carrying the largest circulation in the county where the privilege or immunity is to be enjoined, the first notice to be at least 60 days before the presentation of the petition; but that in fact no petition for this purpose was ever presented, and no notice thereof ever given or published, as required by law. The bill then charges that the defendants are about to proceed under said act of assembly, and prays an injunction.

The case has been heard upon a motion for an injunction. For this purpose have been used the verified bill and numerous affidavits on behalf of the complainant and of the defendants. Kinloch creek is a stream in the lowlands near the coast of South Carolina. Rising from very small beginnings a short distance from the coast, it flows in an easterly direction, receiving Bluff Back creek as a tributary, and empties into Minim creek, which, after its junction with Kinloch creek, empties into the North Santee river. The dam formerly erected by the defendants, and which, under the agreement with complainant and F. W. Ford, had been removed, was constructed on Kinloch creek below its junction with Bluff Back creek. Both ends of this dam were on lands of the defendants. The floodgate had been placed on the southerly end of the dam, and a trunk at the other end of the dam, both the floodgate and trunk being on lands of the defendants. Presumably it is the intention of the defendants, in the exercise of the privilege granted by the Legislature, to build another dam near, if not upon, the location of the former dam.

The first question which arises in this case-- as, indeed, in all cases in federal courts-- is as to the jurisdiction of the court. The action is between citizens of the same state. The only ground of jurisdiction is that the case involves questions arising under the construction or application of the Constitution of the United States. Cohens v Virginia, 6 Wheat. 264, 5 L.Ed. 257. For the federal question we must examine the allegations of the bill alone. The federal question must appear upon its face. Tennessee v. Union & P. Bank, 152 U.S. 454, 14 Sup.Ct. 654, 38 L.Ed. 511. The bill sets up violations of the Constitution of the United States, and also violations of the Constitution of South Carolina. Unless the federal question thus set up appears to be specious (Illinois central v. Chicago, 176 U.S. 656, 20 Sup.Ct. 509, 44 L.Ed. 622), the court must take jurisdiction. The fact that a question made in good faith is presented to ...