Walker v. Shasta Power Co.

Citation160 F. 856
Decision Date03 February 1908
Docket Number1,501.
PartiesWALKER v. SHASTA POWER CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

The defendant in error, a corporation organized under a general corporation act, assumed in its articles the following, among other powers: 'To sell, furnish and deal in electric light, heat and power, and to dispose of such portions thereof, as may not be used by the corporation, to cities towns, villages, public and private corporations, political subdivisions and individuals; to locate, claim, divert, and otherwise acquire water and water rights under the laws of the state of California, and under the laws of any other state or territory of the United States for any and all purposes; to construct, acquire and maintain ditches, dams pipes, pipe lines, tunnels, levees, viaducts, bridges embankments, and excavations, to, across, and from any water course, lake, stream, or waterway, and to sell, lease, grant or otherwise dispose of so much of the water or water rights thus secured, controlled, or appropriated, as may not be used by this corporation, to other persons or corporations by special contracts or otherwise. ' Prior to the organization of the defendant in error, Joseph A. Rossi had posted and filed notices of the appropriation of waters of Hat creek, Lost creek, and Bear creek, all in Shasta county, Cal., and thereafter Rossi conveyed his rights in said water to the corporation, and the corporation commenced to construct and continued to construct, ditches, flumes, and other works necessary to divert and appropriate the water. A part of the work was the construction of a ditch and flume more than 12 miles long, the line of which crosses a portion of the lands of the plaintiff in error. The defendant in error obtained from the city of Redding, a city of more than 5,000 inhabitants, and from the county of Shasta, licenses to erect poles, stretch wires, and other appliances for the purpose of conducting and transmitting electricity for power, light, and other necessary and useful purposes, over, along, and upon the streets, alleys, and avenues of the city of Redding, and the roads, bridges, and public highways of Shasta county. It constructed a power house and installed therein machinery sufficient to generate electricity by the use of the water to the extent of more than 2,000 horse power, and constructed a pole line about 27 miles in length for the purpose of transmitting the electricity thus generated to a substation which it had constructed in the city of Redding. In the substation it had installed machinery and had extended pole lines therefrom throughout the city of Redding for the purpose of distributing electricity. It commenced the present suit for the purpose of condemning a right of way for its ditch and flume over the lands of the plaintiff in error. It alleged in the bill that its purpose was to supply by means of electricity and electric power the necessary public needs in the county of Shasta and elsewhere in the state of California for light, heat, and power, and to supply a necessary public use as aforesaid; that it would be impossible to utilize its water for said necessary public use except by taking the same out of Bear creek, and conducting the same, by means of its ditch, along its surveyed and established ditch line, over and across the land of the plaintiff in error, and further alleged that a large part of the public in general and a large proportion of the inhabitants and citizens, residents, householders, and freeholders within the county of Shasta and elsewhere in the state of California, are not supplied with electricity or electric current for heat, light, or power, and the supplying of electricity and electric current for heat, light, and power to the public in general, and to the inhabitants, citizens, residents, householders, and freeholders within the county of Shasta and elsewhere in the state of California, is and was at all of the times therein mentioned a public necessity, and that the right of way over the said land of said defendant T. B. Walker sought to be condemned is necessary for said public use. The answer denied on information and belief that the defendant in error was organized for the purpose set forth in the complaint, and denied upon information and belief that its purpose was 'to generate or transmit or furnish electricity or electric current to the public in general or to all inhabitants or persons within the county of Shasta or elsewhere in the state of California for the necessary public use or use of light or power or heat,' and alleged that the plaintiff in error 'believes, and upon information and belief alleges, that it is the purpose of the corporation to sell electricity and electric current to such persons as the board of directors shall deem proper,' etc.; 'that it is not the purpose of said plaintiff to furnish electricity or electric current to every individual member of the community in the county of Shasta, or any community, who shall demand or request the delivery thereof, but that said corporation only proposes to deliver electricity and electric current which it does not use itself, and to deliver such portions which it does not use itself only to such persons and in such locality and in such manner as the board of directors of said plaintiff shall deem proper.'

Upon the issues and the evidence the court found as facts, among others, that the defendant in error, immediately after its organization in 1904, acquired the right to divert and use 3,000 inches measured under a four-inch pressure of the waters of Hat creek and other creeks in the county of Shasta, and commenced the construction of its ditches as alleged in the bill, and as set forth in the statement of the facts; 'that said plaintiff is not engaged in any private business, nor has it for its own private purposes any use for any of said electricity except such as may be necessary for the heat and light of its said works, which are incidental to the said public use aforesaid; that it is necessary for said plaintiff to conduct water by means of said ditches, flumes, and pipe lines at large expense as above found to its said water house, and to use the said water to operate such machinery for the purpose of supplying the public of said Shasta county as hereinbefore found, and for such public uses as hereinbefore found. ' The court decreed to the defendant in error a right of way for its ditch across the lands of the plaintiff in error upon payment to him of the sum of $742.30 and the costs of suit.

The final order of condemnation recites: 'It is hereby ordered, adjudged, and decreed that the strip of land hereinafter described being the land described in the complaint herein as sought to be taken by the plaintiff be and the same is hereby finally condemned for the use of plaintiff for a right of way for the ditch described in the complaint herein, and for the purpose of construction maintenance and operation thereon of said ditch and the running of water therein, and for the purpose of using the same by plaintiff in the construction, maintenance of said ditch, and the running of water across the said land of said defendant in the said ditch, solely for the public use described in said complaint and the findings and judgment heretofore made and entered herein. ' Upon the trial there was no evidence showing, or tending to show, that the defendant in error was engaged in any private business or intended to engage therein. It offered to prove as part of its case that it did not intend to engage in any private business, and it adduced testimony that it had not erected any works or engaged in any private enterprise to use any portion of the power, light, or heat. On the trial, for the purpose of showing that it had deprived itself of the power to engage in the private enterprise permitted by its articles of incorporation, it offered in evidence amended articles of incorporation which it had adopted since the commencement of the suit, in which it had eliminated from its powers the power to engage in any private enterprise whatever. Objection to such evidence was made on the ground that the amendment was made subsequent to the commencement of the suit, and the objection was sustained. The allegations of the bill that a large part of the public in...

To continue reading

Request your trial
19 cases
  • Kelo v. City of New London
    • United States
    • Connecticut Supreme Court
    • March 9, 2004
    ...tending to show what is the actual, principal and real use to be made of the property" [emphasis added]); see also Walker v. Shasta Power Co., 160 F. 856, 860 (9th Cir. 1908) (corporation's right of eminent domain is not tested solely by description of public uses and private purposes conta......
  • Washington Water Power Co. v. Waters
    • United States
    • Idaho Supreme Court
    • March 28, 1911
    ... ... v. D. R ... G. R. Co., 30 Colo. 204, 69 P. 568, 60 L. R. A. 383; ... Lamborn v. Bell, 18 Colo. 346, 32 P. 989, 20 L. R ... A. 241; Walker v. Shasta Power Co., 160 F. 856, 87 ... C. C. A. 660 (9th Circuit); In re Niagara L. & P ... Co., 111 A.D. 686, 97 N.Y.S. 853; Dayton Gold & ... ...
  • North Carolina Public Service Co. v. Southern Power Co.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • May 10, 1922
    ... ... Cozard v ... Kanawha Hardwood Co., 139 N.C. 283, 51 S.E. 932, 1 ... L.R.A. (N.S.) 969, 111 Am.St.Rep. 779; Walker v. Shaste ... Power Co., 160 F. 856, 87 C.C.A. 660, 19 L.R.A. (N.S.) ... 725; Fallsburg P. & M. Co. v. Alexander, 101 Va. 98, ... 43 S.E. 194, ... ...
  • Hagerla v. Mississippi River Power Co.
    • United States
    • U.S. District Court — Southern District of Iowa
    • February 3, 1913
    ... ... eminent domain, it being for a public use. In re Southern ... Co., 140 Wis. 245, 122 N.W. 801. In Walker v. Shasta ... Power Co., 160 F. 856, 87 C.C.A. 660, 19 L.R.A. (N.S.) ... 725 (C.C.A. Ninth Circuit), it was held that in building a ... ditch and ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT