Nolan v. Central Ga. Power Co.

• Court: Georgia Supreme Court
• Writing for the Court: BECK, J. HOLDEN, J.
• Citation: Nolan v. Central Ga. Power Co., 134 Ga. 201, 67 S. E. 656 (Ga. 1910)
• Decision Date: 03 March 1910
• Parties: NOLAN v. CENTRAL GEORGIA POWER CO.

67 S.E. 656

134 Ga. 201

NOLAN v. CENTRAL GEORGIA POWER CO.

Supreme Court of Georgia

March 3, 1910

Syllabus by the Court.

The act of December 7, 1897 (Acts 1897, p. 68), authorizing corporations or individuals owning any water power to condemn rights of way and other easements, etc., is not unconstitutional for the reason that the act contains two subject-matters, or matter in the body of the act different from what is expressed in the title.

In view of the provisions of the third section of the act of December 7, 1897, that the power given under this act shall not be used to interfere with any mill or factory actually in operation, the legislative purpose is indicated that the power to condemn land to flow-back water, given in section 1 of the act, includes lands which may contain a water power not in actual use.

The provision of the Constitution (article 3, § 7, par. 17) that no law or section of the Code shall be amended or repealed by mere reference to its title or to the number of the Code section, etc., is confined to repeals and amendments expressly made, and has no application to repeals by implication.

(a) The act of December 7, 1897, is not in conflict with Civ. Code, § 3061, defining the rights of a riparian owner of a nonnavigable stream.

The generation of electricity by water power, to be used for the purpose of lighting towns and cities, or supplying motive power to railroads or street car lines, or supplying light heat, and power to the public, subject to governmental control, is a public use, for the proper exercise of which the General Assembly may grant the right of eminent domain.

When a corporation desires to condemn property for a public use, in the notice of condemnation to the landowner it must appear that the property sought to be condemned is intended to be devoted to a strictly public use.

The superior court cannot confer upon a corporation chartered by it the power of eminent domain, but may incorporate a private corporation with such powers as will enable the corporation by compliance with a legislative grant of eminent domain, to exercise the power conferred in the legislative grant.

There was no abuse of discretion in denying an injunction.

(Additional Syllabus by Editorial Staff.)

The title to a statute need not recite in minute detail all its provisions, but a substantial conformity of the act to its title is required; the conformity to be determined in view of the subject-matter to which the legislation relates.

Error from Superior Court, Bibb County; W. H. Felton, Judge.

Action by A. C. Nolan against the Central Georgia Power Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Atkinson and Holden, JJ., dissenting.

Dorsey Brewster, Howell & Heyman, for plaintiff in error.

Walter T. Johnson, Olin J. Wimberly, and Chester B. Masslich, for defendant in error.

BECK J.

The Central Georgia Power Company, incorporated by the superior court of Bibb county, Ga., gave notice to Elizabeth C. Nolan, Annie L. Nolan, and Q. R. Nolan of its intention to condemn certain described lands, in order to flow-back water in the development of its water power. Thereupon the landowners filed their petition against the power company to enjoin it from proceeding further in the condemnation of their land, on the ground that the act of the General Assembly, under which it is alleged the power company is proceeding, is unconstitutional for the various reasons assigned, and because the use for which their property is sought to be taken is private and not public. After hearing evidence the judge refused an interlocutory injunction, and the plaintiffs excepted. The act of the General Assembly, by virtue of which the power company claims its right to condemn, and which is assailed by the landowners as unconstitutional, is as follows:

"An act to authorize corporations or individuals owning or controlling any water power in this state, or location for steam plant hereinafter mentioned, and operating or constructing, or preparing to construct thereon, a plant or works for generating electricity by water or steam power, to be used for the purpose of lighting towns or cities, or supplying motive power to railroads or street car lines, or supplying light, heat or power to the public, to purchase, lease, or condemn rights of way or other easements necessary for such purposes upon the lands of others, upon first paying just compensation to the owners of the land to be affected.

"Section 1. Be it enacted," etc., "that from and after the passage of this act any corporation or individual owning or controlling any water power in this state, or location for steam plant hereinafter mentioned, and operating or constructing or preparing to construct thereon a plant or works for generating electricity by water or steam power, to be used for the purpose of lighting towns or cities, or supplying motive power to railroads or street car lines, or supplying light, heat, or power to the public, shall have the right to purchase, lease, or condemn rights of way or other easements upon the lands of others in order to run lines of wires, maintain dams, flow-back water, or for other uses necessary to said purposes, upon first paying just compensation to the owners of the land to be affected.

"Sec. 2. Be it further enacted, that if said corporation or individual does not, by contract, procure the easements, rights of way, or other interest on property provided for in the first section of this act, they shall have the right to acquire or condemn the same in accordance with, and subject to, the provisions of the Code of 1895, from section 4657 to 4686, inclusive, as embodied in the act of the General Assembly of this state approved December 18th, 1894, as therein prescribed for railroad, telegraph, canal, mining, and waterworks companies.

"Sec. 3. Be it further enacted, that the power given under this act shall not be used to interfere with any mill or factory actually in operation.

"Sec. 4. [Repeals conflicting laws.]"

1, 2. The first question for consideration is whether the act of December 7, 1897 (Acts 1897, p. 68), confers the right to exercise the power of eminent domain only in order to obtain rights of way or other easements necessary for the erection of poles, stringing of wires, and similar things for the delivery of electric power from the power plant, and its use, after transmission, in lighting towns and cities and supplying motive power to railroads or street car lines, or supplying light, heat, or power to the public, or whether it also includes the right to condemn other easements essential in maintaining dams, backing water in their erection, and like uses essential to the development of the water power and putting it into use in connection with the things above mentioned; in other words, whether the person or corporation owning or controlling the water power must develop it and do the things needful for the generation of the electric power without the use of the state's right of eminent domain, and have the right to exercise the power conferred upon him or it only in connection with the transmission of the power from the plant and its use at the point to which it is transmitted, or whether the act allows condemnation in connection with the development of the water power and the generation of the electric power, as well as in connection with its transmission.

It is said that this court in Oconee Electric Light & Power Company v. Carter, 111 Ga. 106, 36 S.E. 457, construed the act as limiting the power of condemnation to the rights of way and other easements pertaining to the transmission of electrical power, and as not conferring the right to condemn land to flow-back water when necessary to the development of the water power. We do not understand that the court so decided. Although some of the language used in the syllabus may be susceptible of a double construction, when taken in connection with the opinion and the point in the case, the syllabus will not bear the meaning which counsel for plaintiffs in error contend. The point in the case was this: A water company which owned only a part of the water power was attempting to condemn the interest of its co-tenant; and the court simply held that it did not come within the purview of the act, as the act was never intended to confer upon one of two co-tenants of a water power the right to condemn the interest of the other therein. The act provides that any person or individual owning or controlling any water power in this state, or location for steam plant hereinafter mentioned, and "operating or constructing, or preparing to construct thereon a plant or works for generating electricity by water or steam power to be used for the purpose of lighting towns or cities," etc. It deals, not only with a person or corporation who has a water power already developed and is ready for transmitting electricity, but also with one who has constructed or is preparing to construct a plant or works. Thus the exercise of the right of eminent domain for the public utility is not postponed until after the plant has been completed, but it is conferred also in connection with its preparation.

Again it is provided in the first section of the act that there shall be a right of condemnation, not only of rights of way, but also of "other easements upon the lands of others, in order to run lines of wire, maintain dams, flow-back water, or for other uses necessary to said purposes." The maintenance of dams and the flowing back of water are no part of the transmission of the electric current or its utilization by the use of lamps or motors at the place to which it has been transmitted. Those words would be entirely useless and meaningless, if the...