Radford Iron Co. v. Appalachian Electric Power Co.
| Citation | 62 F.2d 940 |
| Decision Date | 10 January 1933 |
| Docket Number | No. 3389.,3389. |
| Parties | RADFORD IRON CO., Inc., v. APPALACHIAN ELECTRIC POWER CO. APPALACHIAN ELECTRIC POWER CO. v. SMITH et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Howard C. Gilmer, of Pulaski, Va., for appellant.
Raymond T. Jackson, of Cleveland, Ohio (John L. Abbot, of Lynchburg, Va., Newton D. Baker, of Cleveland, Ohio, John S. Draper, of Pulaski, Va., and A. Henry Mosle, Creswell M. Micou, and Fraser M. Horn, all of New York City, on the brief), for appellee.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
In the case of Appalachian Electric Power Company v. George Otis Smith et al., members of the Federal Power Commission, in equity, pending in the District Court, a petition was filed by Radford Iron Company praying leave to intervene in order that its right to use the waters of the New river for purposes of transportation should be recognized and maintained. The power company had brought a bill of complaint against the members of the Power Commission in which substantially the following allegations were made: The power company had acquired certain lands and certain flowage rights in lands along the New river and its tributaries in Pulaski county, Va., in order to construct a water power development consisting of a dam and other necessary works, at a point on the New river about one hundred and fifty miles up stream from the present head of navigation on the Kanawha river. Through a subsidiary corporation, the power company had previously filed with the Power Commission, pursuant to section 23 of the Federal Water Power Act, 16 U. S. C. §§ 791, 817 (16 USCA §§ 791, 817), a declaration of intention to construct and operate the water power development in such a way as not to impair the navigable capacity of the stream below, or to affect the interests of state or interstate commerce. The declaration was filed simply in order to secure a determination in advance that the proposed development was not subject to the jurisdiction of the Commission. The power company also filed an application with the Power Commission for a license for the development with the understanding that the application might be withdrawn if it should develop that a federal license was not required. The Power Commission caused an investigation to be made, and found that the river in the part involved was not "navigable waters" within the definition of the Federal Water Power Act (section 3 (16 USCA § 796), but it reached the conclusion that the project, unless operated in accordance with the requirements of the act, would have an adverse effect on the interests of interstate and foreign commerce. Accordingly, the Commission offered to the power company a license, subject to certain conditions and limitations, but the power company refused on the ground that the license and every condition thereof was beyond the power and authority of the Commission. Thereafter the power company requested the Commission to reconsider its findings and to disclaim jurisdiction over the development, or, in the alternative, to issue to the power company a minor part license under section 10 (i) of the Federal Water Power Act, 16 U. S. C. § 803 (i), 16 USCA § 803 (i), containing only conditions necessary and appropriate to the protection of the interests of the United States in its navigable waters. The Power Commission rendered an opinion wherein it ruled that only a standard form license under the act should be tendered, and that the power company should not proceed with the construction until it should have received and accepted this license.
This action the power company declared in its bill of complaint to be arbitrary, unconstitutional, and void, on the ground that the Commission had no jurisdiction under the act to take the action described, and that in attempting to do so, it was depriving the power company of its property without due process of law in violation of the Fifth Amendment of the Federal Constitution. It asserted that the finding and orders of the Commission constituted a cloud on its title to the lands and rights in land involved, and therefore prayed that the orders and actions of the Commission in the premises be annulled and canceled and that the members of the Commission be enjoined from interfering with the plaintiff in the work of development and from requiring the power company to accept a license from the Commission therefor, and that, if the court should find that a license should be necessary, the Commission be enjoined from imposing any condition other than such as should be necessary and appropriate to prevent a substantial obstruction to or diminishment of the navigable capacity of the Kanawha river or any other navigable waters of the United States.
Radford Iron Company declared, in its intervening petition, that it is the owner of valuable mineral and timber lands on waters tributary to the New river, draining into it at a point ten miles above the site of the proposed dam, and that these tributary streams would be covered by waters to be impounded by the dam between the lands of the iron company and the river. It was alleged that the value of the lands consists to an important extent in the availability of the waters of the New river for the transportation of raw and manufactured material and timber products from the lands down the river to the Norfolk & Western Railroad at Radford, and to the Kanawha and Ohio rivers and the railway connections along their courses; that for several years after 1867 the iron company had operated a pig iron furnace on its lands, and a tramway therefrom to the river, in order to transport iron to the river and supplies from the river to the furnace; and that the proposed dam and works would constitute a complete barrier across the river below the iron company's land, and would prevent the exercise by the petitioner of its right of continuous transportation from the waters to be impounded by the dam to the waters of the river below the dam. It therefore prayed that no relief be granted to the power company upon its bill of complaint except upon the condition that the rights of the iron company to...
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...be `a legal interest as distinguished from interests of a general and indefinite character'") (quoting Radford Iron Co. v. Appalachian Electric Power Co., 62 F.2d 940, 942 (4th Cir.1933)). Examination of the relief sought in plaintiffs' proposed complaint in intervention (Dkt. 111), as clar......
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