State v. Columbia Water Power Co.
| Decision Date | 04 March 1909 |
| Citation | 63 S.E. 884,82 S.C. 181 |
| Parties | STATE ex rel. LYON, Atty. Gen., v. COLUMBIA WATER POWER CO. et al. |
| Court | South Carolina Supreme Court |
Original proceeding in the Supreme Court by the State, on the relation of J. Fraser Lyon, Attorney General, against the Columbia Water Power Company and others for an injunction. On return of order to show cause. Respondent water power company discharged, and final order against the other respondents deferred until the report of a special master is filed.
J Fraser Lyon, Atty. Gen., B. P. McMaster; and James S. Verner for petitioner.
Allen J. Green, Barron, Moore & Barron, and B. L. Abney, for respondents.
The Attorney General by his petition, filed in behalf of the state, alleging the Columbia Canal to be navigable water of the state, asked this court to require the respondents, the Columbia Water Power Company, the Electric Street Railway, Light & Power Company, and the city of Columbia, to show cause why they should not be enjoined from continuing the construction of a bridge across the canal, and why they should not be required to move all obstructions at the entrance of the canal. At the hearing, when the defendants had submitted their several returns to the order to show cause, the Attorney General and counsel associated with him consented to an order discharging the Columbia Water Power Company; the return of the respondent showing it had no participation in the erection of the obstructions complained of. As to the returns of the other respondents, it was insisted on behalf of the state that they contained no denial of the substantial allegations of the complaint, and stated no facts constituting a defense. In this state of the case in deciding whether the defendants should be enjoined, the allegations of the petition can be taken as true only so far as they are not denied by the returns; while all allegations of the returns intended as a defense are to be taken as true. No other allegations will be regarded in the discussion. The bridge or structure complained of is to be used for the purpose of supporting water pipes, through which water is to be pumped from the Saluda river into the reservoir from which the city of Columbia furnishes water for its public purposes and for the private use of its inhabitants. The bridge will be within a few inches of the water line of the canal, so that it will be impossible for boats of any kind to pass under it; and it will be a complete obstruction to the passage of boats from one end of the canal to the other. If the canal is navigable, there can be no doubt that the construction of the bridge will effectually obstruct its navigation. The first question to be decided, then, is whether the Columbia Canal in its present condition is navigable. The answer depends mainly on the statutes of the state, and the action taken thereunder with respect to the construction, maintenance, and operation of the canal.
Passing by the general appropriations for internal improvements made by the state from time to time, the appropriation act of 1822 contains this provision: "On the Columbia Canal, locks, dams and works attached thereto, the sum of forty thousand dollars." 6 St. at Large, p. 201. An act of December 20, 1823, relating to the management of the several canals of the state, requires the appointment of a board of commissioners for the Columbia, Saluda, and Bull Sluice Canals, and punishment for any person who "shall obstruct the navigation of any of the said canals." 6 St. at Large, p. 214. The rate of toll for boats passing through any part of the Columbia Canal was prescribed by act of December 20, 1828 (6 St. at Large, p. 370), and by act of December 19, 1833 (6 St. at Large, p. 493). The sum of $40,000 was appropriated in 1836 for the completion of the Columbia Canal from Young's mill to Bull's sluice. 6 St. at Large, p. 567. The canal was leased to F. W. Green for 21 years, with authority to collect toll, by act of December 19, 1843; but the statute contemplates that it shall be kept up by him for purposes of navigation. 11 St. at Large, p. 282. By acts of 1865 (13 St. at Large, p. 310) and of 1868 (14 St. at Large, p. 83) commissioners were authorized to sell the canal, and one of the conditions of the sale was to be "that the same shall be kept open and in proper order for boating purposes (free of all charge for toll or otherwise) as far as the same is now used." A sale having been made and the purchaser having failed to comply with the terms by act of February 14, 1878 (16 St. at Large, p. 360), the General Assembly declared the title had reverted to the state. The act of March 12, 1878 (16 St. at Large, p. 444), provides for a commission to take possession of the canal, and control and direct its development, giving them authority to lease sites for factories. The design to develop the water power of the canal for manufacturing purposes is still more prominent in subsequent legislation. By the act of February 8, 1882 (17 St. at Large, p. 855), the property was turned over to the board of directors of the penitentiary, with authority to improve and develop the water power by constructing a dam and otherwise, but the purpose to reserve the right of navigation is made evident by the provision that the right of condemnation of property for improvement of the canal is conferred "for the sake of the public improvement contemplated in the construction of the said canal and the better navigation of said Broad and Congaree rivers, and the transportation of supplies to market."
The state on December 24, 1887, transferred the canal to trustees for the city of Columbia. The statute (19 St. at Large, p. 1090), by which the transfer was made containing these provisions:
The duties of the trustees in developing the canal for navigation are again set out in the amendment of 1890. 20 St. at Large, p. 967.
On January 11, 1892, the board of trustees of the Columbia Canal conveyed by deed to the Columbia Water Power Company the canal and its appurtenances, subject to all the conditions, duties, limitations, and liabilities imposed by the statute under which the state turned over the property to the trustees of the canal. The Columbia Water Power Company went into possession under this conveyance, and completed the canal from its source at Bull's sluice to the north side of Gervais street. Afterwards, on July 1, 1905, the Columbia Water Power Company by its deed made a like conveyance of the property to the Columbia Electric Street Railway, Light & Power Company, subject to the same duties, conditions, limitations, and liabilities. The Columbia Electric Street Railway, Light & Power Company is now in possession of the property, and it is by virtue of a contract with that corporation that the · city of Columbia is building the bridge or structure to bear across the canal the pipes through which the city intends to pump water from the Saluda river into the city reservoir.
From the foregoing statement of its legislative history, it is evident the canal was constructed by the state, and used for many years as an improvement of the navigation of two navigable streams, the Broad and Congaree rivers, made necessary by the shoals at Columbia. From this fact the legal result follows that for purposes of navigation the canal is to be regarded as a part of those rivers, and therefore navigable just as any other portion of them is navigable. It is true that, according to the generally accepted definition water is navigable when in its ordinary state it forms by itself or its connection with other waters a continued highway over which commerce is or may be carried in the customary mode in which such commerce is conducted by water. The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999; The Montello, 78 U.S. 411, 20 L.Ed. 191; U.S. v. Montello, 87 U.S. 430, 22 L.Ed. 393; State v. Pacific Guano Co., 22 S.C. 57; Heyward v. Farmers' Mining Co., 42 S.C. 138, 19 S.E. 963, 20 S.E. 64, 28 L. R. A. 42, 46 Am. St. Rep. 702; 1 Farnham on Waters, 67. Under the definition a stream...
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