State v. Charleston Light & Water Co.

• Decision Date: 20 April 1904
• Parties: STATE ex rel. GUENTHER et al. v. CHARLESTON LIGHT & WATER CO.
• Court: South Carolina Supreme Court

47 S.E. 979

68 S.C. 540

STATE ex rel. GUENTHER et al. v. CHARLESTON LIGHT & WATER CO.

Supreme Court of South Carolina

April 20, 1904

Petition in the original jurisdiction of this court, by Pauline M Guenther, C. O. Witte, A. M. Lee, Henry A. M. Smith, Henry E Young, and Paul Grant, for writ of mandamus against the Charleston Light & Water Company. Writ denied.

Buist & Buist, Mitchell & Smith, and Smythe, Lee & Frost, for petitioners. W. C. Miller and P. H. Gadsden, for respondent.

POPE C.J.

The relators above named have applied to this court, in its original jurisdiction, for a writ of mandamus to compel the respondent to open up to navigation Goose creek, a navigable stream in the county of Berkeley, in the state aforesaid across which, from side to side of said Goose creek, the respondent has placed a dam extending from bank to bank of said stream, thereby closing the same to all vessels, boats, etc.--which occurred early in December, 1903--demands having been made by the relators, who are the riparian owners of lands on each side of said Goose creek from the dam to some distance above said dam, upon the respondent to remove so much of said dam as is essential to the navigation of the waters of said Goose creek, which the respondent has declined to do. In order to correctly apprehend the issues tendered by the petition, as based upon the facts alleged therein, it will be necessary to set forth the petition in terms (omitting the caption). The following is a copy thereof:

"To the Supreme Court of the State of South Carolina The petition of Pauline M. Guenther, C. O. Witte, A. M. Lee, Henry A. M. Smith, Henry E. Young, and Paul Grant, relators in the above-entitled proceedings, respectfully petitioning this honorable court, shows:

First. That under and by virtue of article 5, § 4, of the Constitution of the state of South Carolina, and section 11 of the Code of Procedure of said state, the Supreme Court of South Carolina has power to issue writs or orders of mandamus, and other remedial and original writs.

Second. That under and by virtue of an act of the General Assembly of South Carolina, entitled 'An act to incorporate the Charleston Light and Water Company,' approved the 19th day of February, 1898 [22 St. at Large, p. 934], the Charleston Light and Water Company became incorporated, and is a corporation carrying on business in the state, under the laws of South Carolina, and exercising its franchises thereunder, which act is in terms set out in Exhibit A, and made a part of this petition.

Third. That on the 23d day of June, 1902 the Honorable Wm. Cary Sanger, Assistant Secretary of War, issued the following approval for respondent's dam, to wit: 'Where as, by section 9 of an act of Congress, approved March 3, 1899 [30 Stat. 1151, c. 425 (U. S. Comp. St. 1901, p. 3540)], entitled "An act making appropriations for the construction, repair and preservation of certain public works on rivers and harbors, and for other purposes," it is provided that bridges, dams, dikes, or causeways may be built under authority of the Legislature of a state across rivers and other waterways the navigable portion of which lies wholly within the limits of a single state, provided the location and plans thereof are submitted to and approved by the Chief of Engineers and by the Secretary of War before construction is commenced: And whereas, the Charleston Light and Water Company, a corporation existing under the laws of the State of South Carolina, having authority of the Legislature of the state of South Carolina to construct a dam across Goose creek, in said state, has submitted a map of the location and plans of the same, which have been approved by the Chief of Engineers: Now, therefore, this is to certify that the map of location and plans of said dam, which are hereto attached, are hereby approved by the Secretary of War, subject to the following conditions: (1) That the engineer officer of the United States army, in charge of the district within which the dam is to be built, may supervise its construction, in order that said plans shall be complied with. (2) That the prolongation of the canal at both ends shall be dredged to full depth and width till it meets the channel of the creek. Witness my hand this 23d day of June, 1902. Wm. Cary Sanger, Assistant Secretary of War.' That the plans and specifications referred to above by the said Assistant Secretary of War provided for a canal and lock through said proposed dam, and connecting the said stream on either side of said dam, having the following dimensions, to wit, a length of 55 feet, a width of 18 feet, and a depth at low water of 7 feet.

Fourth. That on or about the _____ day of January, 1904, the respondent presented to the engineer office of the United States, at Charleston, S. C., new plans and specifications providing for a canal and lock through said proposed dam, and connecting the said stream on either side of said dam, having the following dimensions, to wit, a length of 55 feet, a width of 18 feet, and a depth at low water of 7 feet, which plans and specifications do not materially differ from the former specifications above referred to, except as to the location and construction of the lock and spillway, and which have not yet been approved by the chief of Engineers and the Secretary of War.

Fifth. That under a public call made by the captain of United States engineers stationed at Charleston, S. C., for objections, if any, to the aforesaid new proposed plans and specifications, the following propositions were submitted against them on January 11, 1904, to wit: '(1) That the dimensions of the locks embodied in the specifications submitted to the United States government are too small. (2) That the dam in its present state does not accord with the specifications assented to by the United States government, and blocks all traffic on the river, whereby the corporation has become criminally liable, and may be compelled to remove the said dam.'

Sixth. That in the county of Berkeley, state of South Carolina, there flows a large navigable stream, known as Goose creek, in which the tide ebbs and flows, and which from time immemorial has been capable of navigation in fact, and has been freely and commonly used for navigation by the public in general, and especially by or in behalf of the riparian proprietors and owners of the lands, plantations, and fields lying upon the borders of said stream. That your relators herein are the owners of large tracts of lands bordering on said stream at points on which the said stream is navigable in fact, and lying above the dam, hereinbefore referred to, which is being erected by the said the Charleston Light & Water Company, through its agents or contractors, and which said stream as aforesaid was and is navigable in fact from the lands of your relators as aforesaid to its mouth, emptying into Cooper river, S. C., a large navigable stream, which in turn empties into Charleston harbor, and thence connects with the Atlantic Ocean; but that said navigation has been obstructed in the past few weeks by the said dam of the said the Charleston Light & Water Company, as will more fully hereafter appear.

Seventh. That the said the Charleston Light & Water Company, through its agents and contractors, are erecting a dam across the said stream known as Goose creek, in the county of Berkeley, state of South Carolina, at a point next below the lands of all these relators on said stream, and at a point where said stream was navigable in fact; which said dam has and does cut off and prevent the continuous navigation of said stream from above to below said dam, and the opposite, to the detriment of the rights of the public to navigate the said stream, and especially of these relators, upper proprietors or owners on said stream, with regard to the right of navigation for themselves, agents, or servants to and from their said lands bordering on said stream.

Eighth. That on the 23d day of December, 1903, the agent of these relators, while proceeding in a steamboat from the city of Charleston, S. C., to the said dam aforesaid, for the purpose of navigating the said stream to the said lands of the relators lying upon the same, arrived at the point on said stream where the said dam has been erected below the said lands of your relators, and found the same utterly impassable to navigation by reason of being obstructed by

the said dam of the said the Charleston Light & Water Company. That then and there he requested and demanded a passageway through said dam, but the same was not given, as the said stream was closed at said point by said dam, so that the navigation of the same was obstructed and impassable, and was told by the party in charge of the construction of said dam that such had been the state of affairs for six weeks, and would continue for six weeks more.

Ninth. That the following correspondence passed between the attorneys of the relators and respondent through letters which were delivered and received, to wit:

'Charleston, S. C., December 31st, 1903. Mr. Morris Israel, Vice-President of The Charleston Light and Water Co., Charleston, S. C.--Gentlemen: In behalf of Pauline M. Guenther and other riparian proprietors owning lands located above your proposed dam on Goose Creek, we beg leave to respectfully demand that the said dam which now obstructs navigation be forthwith so conducted as to cease said obstruction. Your prompt reply is requested. Yours respectfully, Buist & Buist, Attorneys. Smythe, Lee & Frost, Attorneys. Mitchell & Smith, Attorneys.'

'Charleston, S. C., Jan. 6, '04. Messrs. Buist & Buist, Smythe, Lee & Frost, and Mitchell & Smith, City--Gentlemen: Yours of the 31st received. In reply I beg to say that this company has made

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