Webb v. Knox County Transmission Co.

• Citation: 225 S.W. 1046,143 Tenn. 423
• Parties: WEBB ET AL. v. KNOX COUNTY TRANSMISSION CO. BARGER ET AL. v. KNOX COUNTY TRANSMISSION CO.
• Decision Date: 27 October 1920
• Court: Supreme Court of Tennessee

225 S.W. 1046

143 Tenn. 423

WEBB ET AL. v. KNOX COUNTY TRANSMISSION CO.

BARGER ET AL. v. KNOX COUNTY TRANSMISSION CO.

Supreme Court of Tennessee.

October 27, 1920

Appeal from Circuit Court, Knox County; Von A. Huffaker, Judge.

Condemnation suits by the Knox County Transmission Company against D. C Webb and others and against J. N. Barger and others. From judgments for plaintiff, defendants, their motions for new trial having been overruled, appeal. Affirmed.

HALL J.

In these cases the effort of the Knox County Transmission Company to exercise the right of eminent domain is challenged.

This company was organized under the general corporation laws of Tennessee, and more especially under chapter 144, Acts of 1901, chapter 151, Acts of 1909, and chapter 127, Acts of 1909.

The defendants, D. C. Webb and J. N. Barger, are adjoining property owners, over whose lands the company is seeking to condemn a right of way for the erection of an electric power line. The company filed separate petitions against these defendants, seeking to have these rights of way over their lands condemned.

The defendants separately answered, denying the right of petitioner to condemn upon a number of grounds set forth in their respective answers.

Proof was taken upon the issues raised in both cases, and the cases were heard together in the court below upon exactly the same evidence, although they were not consolidated.

The trial resulted in a final judgment being entered sustaining the petitions in both cases, holding that petitioner had the right to condemn, and ordered said rights of way condemned for the benefit of petitioner.

Both defendants made motions for new trials in writing, which motions were overruled, and they have appealed to this court and have assigned errors.

Without elaborating or discussing the various powers conferred on petitioner by its charter, it appears that, among others, it is endowed with authority to develop the--

"water power of the rivers and streams of this state, whether in fact navigable, or by law declared navigable, or unnavigable to manufacture electricity to be used for making electric lights, furnishing motive power, heating houses electrotyping, telephone purposes, or for any purpose to which electricity is now or may hereafter be applied in any manner or form whatever; and, for this purpose, said company is hereby authorized and empowered and invested with the privilege of constructing, maintaining, and operating, in such rivers and streams of this state, dams, piers, sluiceways, canals, locks, ponds, breakwaters, abutments, and mill sites for manufacturing purposes, upon the following provisions and conditions."

In the petition it is said:

"By means of poles and towers, with wires and cables strung thereon, your petitioner proposes to carry and transmit said electricity from the point where the same is to be generated or manufactured to various cities, towns, and communities of the state of Tennessee, to be sold to said cities, towns, and communities and to all the inhabitants, citizens, firms, and corporations thereof who may desire to purchase same, and at uniform and reasonable rates, without discrimination, and under the supervision, regulation, and control of the Railroad and Public Utilities Commission of the state of Tennessee, or such other supervisory authority of the state as may be clothed with the power or jurisdiction over the public service corporations or utilities of this state."

"Petitioner purposes also to sell, furnish, and deliver said electricity to such other public service electric light corporation or other public utilities as are authorized by law to sell, furnish, and distribute electricity to the public for heat, light, or power, or for any other purpose for which electricity is or may be used, to the end that such public service corporations to whom said electricity may be sold or furnished by your petitioner may by their proper means and facilities, or by the proper means and facilities of your petitioner, distribute and furnish said electricity to all persons, firms, and corporations desiring the same at reasonable and uniform rates, without discrimination, and under the rules, regulations, and requirements of the Railroad and Public Utilities Commission of the state, as aforesaid."

In the petition it is further said:

"It is the purpose of your petitioner to perform the functions of a public service corporation as contemplated by its charter and the laws of the land by furnishing electricity to all citizens, firms, corporations, and communities along its lines, who may desire said electricity in quantities sufficient to justify the handling of the same at such particular points or places, or as shall be its duty as a public service corporation to furnish, or as may be required by the Railroad and Public Utilities Commission of the state, or such other supervisory authority as may have jurisdiction over your petitioner as a public service corporation. And at all points or places where said electricity is to be sold or furnished, it will be supplied to all classes of customers without discrimination and at uniform rates, where a similarity of conditions makes it reasonable, possible, or practical to maintain such rates, and as to all said matters it will be subject to the requirements of said Railroad and Public Utilities Commission, as aforesaid."

The defendants resist the right of the petitioner to condemn on the grounds:

(1) It is said that it appears from the pleadings and proof that petitioner does not propose or intend to devote the lands or rights of way sought to be condemned to a public use.

(2) That it is not the purpose of petitioner to furnish electricity to the public generally.

(3) That it has not the right of eminent domain, because it proposes to lease, or has leased, its line and facilities to another public corporation.

(4) That petitioner is not a bona fide corporation, because the proof shows that it was organized as a mere dummy, to be used in behalf of the Tennessee Power Company and the Knoxville Railway & Light Company, for the purpose of carrying out and aiding an alleged monopoly formed and existing between the Knoxville Railway & Light Company and the Tennessee Power Company, in violation of the anti-trust laws of the state.

(5) That the right of way as located by petitioner is improperly located, the insistence being that it passes in dangerous proximity to the village of Bearden, which has a population of some 500 or 600, and, as located constitutes a continuing nuisance, both public and private.

(6) That petitioner does not own dams, create its own water power, or manufacture its own energy.

(7) That the acts, under which petitioner is chartered and organized, are violative of section 21, article 1, of the state Constitution, because they do not restrict the use of the property authorized to be condemned to a public use alone.

The purpose of the petitioner in seeking condemnation of the lands of the defendants is stated by its chief engineer, Mr. Crumbliss, who is also one of its directors. He states that the line which petitioner desires to construct is from Maryville, in Blount county, Tenn., to Knoxville, in Knox county, Tenn. The line was under construction at the time of the hearing in the court below, and a portion of the work has been completed.

Mr. Crumbliss testified that it is the purpose of the petitioner to distribute and sell electrical energy, and in this connection he states that the Tennessee Power Company has a generating plant or system on the Ocoee river, between Chattanooga and Caney Fork river, in Middle Tennessee, and from this system power is distributed over 600 miles of transmission line to Nashville, Knoxville, Cleveland, Sweetwater, Murfreesboro, Mascot, Lenoir City, Loudon, and other towns; that the Tennessee Power Company does not actually bring its lines within the city of Knoxville, having no franchise for that purpose, but distributes its electricity in Knoxville through the Knoxville Railway & Light Company, the Knoxville Railway & Light Company being a public service corporation, and engaged in the business of selling and furnishing electricity to all persons desiring the same in the city of Knoxville and contiguous territory; that there is an arrangement between the Tennessee Power Company and petitioner for the leasing of its lines to the Tennessee Power Company for the transmission of electricity; that petitioner also has an arrangement with the Tennessee Power Company for the furnishing of its electricity; that petitioner can serve the public at any point where there is power enough needed to justify the expense that would be necessary to reduce the current, and will serve any community on that line where it can do so at reasonable expense, and where it can furnish proper facilities for that purpose; that there is no restriction on petitioner to serve any community, or any particular person, partnership, or corporation at any point along its line; neither is there any restriction on the Tennessee Power Company to perform said service.

While the petitioner is a separate corporation from the Tennessee Power Company, and keeps its records and books separate from the Tennessee Power Company, it is admitted that it is a subsidiary of the Tennessee Power Company in the sense that the owners of the Tennessee Power Company were promoters of petitioner. The reason for its creation is shown to be on account of financing; but it is insisted that this in no way restricts or embarrasses its right to condemn under its charter.

Mr Crumbliss further testified that, in furnishing electricity, it is not possible to construct lines and facilities, so as to deliver...