State v. Columbia Ry., Gas & Electric Co.

• Decision Date: 26 August 1919
• Docket Number: 10274.
• Parties: STATE v. COLUMBIA RY., GAS & ELECTRIC CO.
• Court: South Carolina Supreme Court

100 S.E. 355

112 S.C. 528

STATE v. COLUMBIA RY., GAS & ELECTRIC CO.

No. 10274.

Supreme Court of South Carolina

August 26, 1919

Appeal from Common Pleas Circuit Court of Richland County; W. H Townsend and R. W. Memminger, Judges.

Action by the State of South Carolina against the Columbia Railway Gas & Electric Company. From an order refusing its motion to approve and accept its petition and bond for the removal of the case into United States District Court, and from an order overruling its demurrer to the complaint, defendant appeals. Affirmed.

Following is the order of Townsend, Circuit Judge, overruling demurrer referred to in opinion:

"This cause comes on to be heard on demurrer to complaint, on the ground that it fails to state facts sufficient to constitute a cause of action. The first question is whether there is any condition in the grant by the state of the Columbia Canal working a forfeiture, because of noncompliance by the grantee therewith.

A grant by 'an act of the Legislature * * * differs from a grant of a private person in that it is both a grant and a law, and, as such, the intent of the law is to be kept in view, and its purpose effectuated, whenever the subject-matter of the grant comes in controversy; and that construction must be placed upon it which will preserve and carry out the object of the Legislature, however such construction may conflict with the principles of the common law, or prevent the attachment of equities which would spring from transactions between private parties.' Jackson, etc., R. Co. v. Davison, 65 Mich. 430, 32 N.W. 726; Schulenberg v. Harriman, 21 Wall. 44, 22 L.Ed. 551; Nash v. Sullivan, 29 Minn. 214, 12 N.W. 698; Oregon & Cal. R. R. v. United States, 238 U.S. 416, 35 S.Ct. 908, 59 L.Ed. 1360.

'The sense of a law or terms of an instrument may be found in other words than the quoted technical ones, if the intention is made clear.' Oregon & Cal. R. R. Co. v. United States, 238 U.S. 415, 35 S.Ct. 917, 59 L.Ed. 1360.

A history of the Columbia Canal, as shown by our legislative acts, may be found in the opinion in State v. Water Power Co., 82 S.C. 181, 183 to 187, 63 S.E. 884, 22 L. R. A. (N. S.) 435, 129 Am. St. Rep. 876, 17 Ann. Cas. 343. As there suggested, the Broad and Congaree rivers are navigable streams, and, while the grant was obtained by the grantee for his private advantage, it was made by the state primarily, in pursuance of a policy to benefit the community by the improvement of the navigability of these rivers (82 S.C. 186, 187, 63 S.E. 884, 22 L. R. A. [N. S.] 435, 129 Am. St. Rep. 876, 17 Ann. Cas. 343), and therefore to advantage to that extent the state. The grant contemplated a development of the subject of the grant by the grantee, in a direction that would promote the purposes of commerce. White v. Nassau Trust Co., 168 N.Y. 149, 61 N.E. 169, 64 L. R. A. 275. The property of the state in these rivers was ingrafted with a trust for the benefit of the public, and was inalienable except for certain public purposes. State v. Pacific Guano Co., 22 S.C. 83; Ill. Cent. R. R. Co. v. Ill., 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018; Scott v. Lattig, 227 U.S. 242, 243, 33 S.Ct. 242, 57 L.Ed. 490, 44 L. R. A. (N. S.) 107; United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746.

As stated in Water Power Co v. Electric Co., 43 S.C. 163, 20 S.E. 1002, by the present Chief Justice, the grant in question was made 'upon the conditions therein stated.' Prominent among these conditions was the improvement of the navigability of the rivers by the completion of the canal from Bull's sluice, on Broad river, to a point a few yards above Rocky branch on the Congaree. The statute which makes the grant clearly declares the purpose for which it was intended the granted property should be used, i. e., the improvement of the navigability of these rivers by the completion and maintenance of the canal as therein prescribed, which was in furtherance of the trust held by the state. Such use would inure specially to the benefit of the public, for whom the state was trustee. The grant may be declared void if the declared purpose is not fulfilled. Mahoning v. Young, 59 F. 96, 8 C. C. A. 27; Slegel v. Lauer, 148 Pa. 236, 23 A. 996, 15 L. R. A. 547. The grantee cannot disregard the requirements of the law under which he received the property, and still continue to hold it. In effect, the grant was of a limited fee, made on the implied condition of reverter in the event that the grantee failed or ceased to use the property for the purpose for which it was granted. Northern Pacific Ry. v. Townsend, 190 U.S. 267, 271, 23 S.Ct. 671, 47 L.Ed. 1044.

This disposes of the first and second specifications of demurrer.

The legislative act of 1917, coupled with the alleged demand for possession and refusal, is equivalent to the exercise of the right of reentry. White v. Britton, 75 S.C. 428, 56 S.E. 232; Schulenberg v. Harriman, 21 Wall. 44, 22 L.Ed. 551. A judicial proceeding was authorized by the act of 1917. Des Moines v. City Railway Co., 214 U.S. 179, 29 S.Ct. 553, 53 L.Ed. 958; Defiance Water Co. v. Defiance, 191 U.S. 184, 24 S.Ct. 63, 48 L.Ed. 140; New Orleans Waterworks Co. v. Louisiana, 185 U.S. 336, 22 S.Ct. 691, 46 L.Ed. 936; City of Detroit v. Detroit, etc., Ry. Co., 184 U.S. 368, 22 S.Ct. 410, 46 L.Ed. 592; Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218; Hammond v. Railway, 15 S.C. 10.

The complaint shows no waiver by the state of any breach of conditions in the grant. The other specifications of demurrer were not pressed in argument. The purpose of this action is to determine whether the alleged conditions existed in the grant, and whether the defendant and those under whom it claims have violated them. Both the conditions and violations are alleged. If the defendant has any defense, it must be shown by answer.

It is therefore ordered, adjudged, and decreed that the demurrer to the complaint be, and is hereby, overruled; with leave to the defendant to answer, if it be so advised, within 20 days from the date of this order."

William Elliott and J. B. S. Lyles, both of Columbia, for appellant.

T. H. Peeples, Atty. Gen., B. L. Abney and J. Fraser Lyon, both of Columbia, and S. M. Wolfe, Atty. Gen., for the State.

HYDRICK J.

The state brought this action to obtain a judgment of forfeiture of the rights of defendant in and to the Columbia Canal, and to recover possession thereof. The complaint alleges that the state was the owner of the canal, and, in pursuance of an act of the Legislature, in 1887 (19 Stat. 1090), it was conveyed to a board of trustees--

"for the use and benefit of the city of Columbia, for the purposes hereinafter in this act mentioned, subject, nevertheless, to the performance of the conditions and limitations herein prescribed on the part of the said board of trustees and their assigns: Provided, that should the said canal not be completed to Gervais street within seven years from the passage of this act all the rights, powers, and privileges guaranteed by this act shall cease, and the said property shall revert to the state."

That it had been completed nearly to Gervais street, something more than half its proposed length, and the trustees were required to carry it on to the point where it was to empty into the Congaree river, as soon as practicable and provisions were made therein for that purpose; that in 1892, in pursuance of an act of 1890, amending the act of 1887 (20 Stat. 967), the trustees conveyed it to the Columbia Water Power Company, "subject, nevertheless, to the conditions, limitations, provisos, and exceptions" contained in said acts, and in 1905 the Water Power Company conveyed it in like manner to defendant; that the chief inducement to the conveyance of the property by the state was to open navigation through the canal around the shoals in the Congaree and Broad rivers at and near their confluence, and develop the water power thereof south as well as north of Gervais street, all of which is provided for in minute detail by the terms of the acts referred to; that nothing has been done toward the completion of the canal south of Gervais street, notwithstanding it has long since been practicable to have done so, and defendant has allowed it to be obstructed, so as to prevent the navigation thereof north of that street, and has abandoned the completion thereof, and the development of the water power contemplated south of that street; that by an act of 1917 (30 Stat. 348) the Legislature declared that the rights of defendant in and to said property had been forfeited, and the same had reverted to the state, on account of the failure to perform the conditions upon which it had been granted, and the Attorney General and other agents of the state therein named were directed to take such...