Power Co. v. . Power Co.

119 S.E. 213, 186 N.C. 179, 1923 N.C. LEXIS 202

• Court: Supreme Court of North Carolina
• Decided: October 3, 1923
• Status: Published

Opinion

CLARKSON, J., concurring.

ADAMS, J., not sitting, and taking no part in decision in this case. All of these causes, except No. 589, were condemnation proceedings, brought by the Carolina-Tennessee Power Company against the several defendants for the purpose of condemning and acquiring certain lands situate on the banks of the Hiawassee River in Cherokee County, to be used by petitioner in connection with a water-power development or hydro-electric system. No commissioners were appointed, as provided by C. S., 1720; but, by consent of all the parties, at the January Special Term, 1923, Cherokee Superior Court, said causes were transferred to the civil-issue docket, consolidated and tried together before his Honor, P. A. McElroy, sitting as judge and jury, it being agreed that he should hear the evidence, find the facts and render judgments accordingly.

It was admitted on the hearing that the Hiawassee River Power Company now owns all the lands sought to be condemned in these proceedings, except those involved in No. 596, known as the Reese case, said proceeding being against W. H. Reese and wife. The several causes, therefore, for all practical purposes, may be considered as one proceeding on behalf of the Carolina-Tennessee Power Company against the Hiawassee River Power Company to condemn lands claimed by it, and another proceeding against W. H. Reese and wife to condemn lands claimed by them.

No. 589 was a motion to dissolve the injunction issued in the case ofCarolina-Tennessee Power Company v. Hiawassee River Power Company, decided by this Court in 1918 and reported in 175 N.C. 668. By consent, this motion was heard with the other causes above mentioned, and the motion was denied by the trial court.

In No. 595, the defendant, in addition to setting up the usual defenses, asked for affirmative relief against the petitioner in the shape of an injunction to restrain the petitioner from further interfering with the defendant in the development of its water-power or hydro-electric system. This application by the defendant, Hiawassee River Power Company, for injunctive relief was denied.

From a judgment in favor of the petitioner in each of the above-entitled causes the defendants appealed, assigning errors in each cause. After stating the facts as above: It required two weeks in the Superior Court to hear and to determine the matters herein litigated. The record on appeal to this Court is voluminous; it contains more than three hundred exceptions and assignments of error. After a careful and painstaking investigation of the whole matter, we have found no ruling or action on the part of the trial judge which we apprehend should be held for reversible error. In each cause, therefore, the judgment entered below must be affirmed.

The main contentions of the defendants are as follows:

1. That all these condemnation proceedings should be dismissed, the injunction in the original suit (No. 589) dissolved, and an injunction issued against the petitioner and in favor of the Hiawassee River Power Company in No. 595.

2. That the trial court erred in its findings with respect to the issue of damages in each cause which entitles the defendants, at least, to a new trial on this issue.

The defendants assign three principal reasons for their first position: (1) That the petitioner's right of condemnation has been lost by laches and its failure to prosecute these suits; (2) that the petitioner has never acquired the right to condemn these lands because it has failed to show compliance with the conditions set forth in the fifteenth section of its charter, and because it has never had a legal board of directors; and (3) that the petitioner is not proceeding in good faith.

With respect to the defendants' first and third reasons, just stated, relating to the question of laches, or the statute of limitations, and good faith, it is sufficient to say that, upon competent and ample evidence, the trial court has resolved these matters in favor of the petitioner, as witness the following findings, made and incorporated in the judgment entered in each condemnation proceeding:

"8. That the petitioner's cause of action is not barred by the statute of limitations, and petitioner has not abandoned its right to make said developments, or its purpose and intention to make said developments, or any of them, and that none of the defenses set up in the pleadings of the defendants can be availed of by the defendants or either of them in this cause.

"9. That the petitioner has not been guilty of any laches in failing to develop said water-power described in the petition; that the prior right of the Carolina-Tennessee Power Company to develop said water-powers still subsist and have not been forfeited or lost by the said petitioner, and the defendant, Hiawatha River Power Company, is not entitled to use said lands, or any part thereof, for water-power purposes."

These findings, made by his Honor below, clearly distinguish the present causes from the cases relied upon and interestingly discussed by the defendants in their elaborate brief. To point out the many differences between the authorities cited and the instant causes would only be a work of supererogation. The alpha and omega of every case must be determined by the facts of record. However, for the benefit of the student or the investigator, an examination of the following authorities, chiefly relied upon by the defendants, may be of interest: Stith v. Jones, 119 N.C. 428;Manning v. R. R., 122 N.C. 824; R. R. v. R. R., 148 N.C. 59; Bensley v.Mountain Lake Water Co., 13 Cal. 306; 73 Am. Dec., 579; Rehmke v. Fogarty, 107 P. 184; Hagerman v. Bates, 38 Pac. (Colo.), 1100; Streicher v.Murray, 92 Pac. (Mont.), 36; Sanitary District of Chicago v. Chapin, 80 N.E. (Ill.), 1017; N. Y. Cable Co. v. N. Y., 10 N.E. 332; Johnston v.Standard Milling Co., 148 U.S. 360; 37 L.Ed., 480.

As between the Carolina-Tennessee Power Company and the Hiawassee River Power Company, the right, as well as the prior right, of the petitioner to condemn the lands in dispute and to acquire them for use in its hydro-electric or water-power development must be considered as settled by our former decisions, at least so far as the present records are concerned. Carolina-Tenn. Power Co. v. Hiawassee R. P. Co., 175 N.C. 668;S. c., 171 N.C. 248. Defendants contend, however, as to the suit against W. H. Reese and wife, No. 596, that this would not be so, as they were not parties to the original proceeding. But in the Reese case it is specifically admitted by the defendants "that the petitioner is a North Carolina corporation and under the supervision of the Corporation Commission of North Carolina"; and his Honor finds as a fact from the evidence in this cause: "That the petitioner, Carolina-Tennessee Power Company is a corporation, duly created, organized and existing under and by virtue of the laws of the State of North Carolina, having the powers, privileges and duties set out in its charter, to wit, chapter 76 of the Private Laws of 1909, and having its principal place of business in the town of Murphy, N.C."

It is further contended by the defendants in the Reese case, as well as in the others, that the Legislature has granted special privileges and special charter rights to the petitioner in its act of incorporation, which are in violation of the Fourteenth Amendment to the Constitution of the United States. For this reason the defendants insist upon their motion to dismiss, or for judgments as of nonsuit. The motions based upon this ground must be overruled on authority of Power Co. v. Power Co., 175 N.C. 668;Land Co. v. Traction Co., 162 N.C. 314; Street R. R. v. R. R., 142 N.C. 423.

But the defendants' most vigorous attack is made upon the second ground above mentioned, to wit, that the petitioner has never acquired the power of eminent domain because it has failed to show compliance with the following conditions as set forth in the fifteenth section of its charter:

"Whenever one hundred shares shall have been subscribed, the subscribers, under the direction of the majority of the incorporators herein named, who themselves shall be subscribers, may organize the said company by electing a board of directors, and provide for the election of such other officers and the adoption of such by-laws as may be necessary for the management of the business and affairs of the said company, and thereupon they shall have and exercise all powers and functions of a corporation under this charter and the laws of this State."

The defendants, in their brief, admit the bona fide, de jure existence of the petitioner as a corporation, but they contend that, under the above provision, three specific requirements must be met before it can exercise the right of condemnation: (1) That each incorporator must be a subscriber for stock; (2) that a minimum of 100 shares of stock shall have been subscribed; (3) that a board of directors shall have been elected. For this position the defendants rely upon the following authorities: R. R. v.Stroud, 132 N.C. 413; R. R. v. R. R., 148 N.C. 59; Merges v. Altenbrand, 123 Pac. (Mont.), 21; N. Y. Cable Co. v. NewYork, 10 N.E. 332; Warden v. Madisonville etc. R. R. Co., 101 S.W. (Ky.), 914; Parkside Cemetery Assn. v. Cleveland etc. Traction Co., 112 N.E. (Ohio), 596, and others.

Passing the question of the right of the defendants to make this attack in the present proceedings, we think it is sufficient to say that in each cause the following specific finding is made by the trial court:

"That the petitioner, Carolina-Tennessee Power Company, is a corporation, duly created, organized and existing under and by virtue of the laws of the State of North Carolina, having its principal place of business in the town of Murphy in said State, and having the authority, power and duties set out in its charter, to wit, chapter 76, Private Laws of 1909."

Petitioner, however, in order to repel this attack as a matter of law, cites and relies upon the following authorities: R. R. v. Lumber Co.,114 N.C. 690; Street Ry. Co. v. R. R., 142 N.C. 423; Kansas City etc. Ry.Co. v. Coal Min. Co., 61 S.W. (Mo.), 684; Lewis on Eminent Domain, sec. 592; Nichols on Eminent Domain, sec. 411; 2 Cook on Corporations (7th Ed.), sec. 637; 20 C. J., 913.

The defendants' last position is that, in any event, they are entitled to a new trial in each cause for errors committed on the issue of damages. We have carefully examined the numerous exceptions taken and entered on this branch in the different proceedings, but nothing has been discovered by us which we think should be held for reversible error. No benefit would be derived from a discussion of these exceptions seriatim, as they deal largely with questions of fact, and apparently no new or novel point of law is presented for decision by any of them.

It is the accepted position here and elsewhere that in condemnation proceedings, where property is taken for a public use, or a quasi-public use, under the power of eminent domain, the measure of compensation to be awarded the owner is the fair market value, taking into consideration any and all uses or purposes to which the property is reasonably adapted and might, with reasonable probability, be applied. The test is the fair market value of the property. 10 R. C. L., 128; Nichols on Eminent Domain (2d Ed.), sec. 445; Brown v. Power Co., 140 N.C. 333; R. R. v. McLean,158 N.C. 498; Land Co. v. Traction Co., 162 N.C. 503.

In Boom Co. v. Patterson, 98 U.S. 403, the rule is very clearly stated by Mr. Justice Field, as follows: "In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in a sale of property between private parties. The inquiry in such cases must be, what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted — that is to say, what is it worth from its availability for valuable uses? Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valueless because he is unable to put it to any use. Others may be able to use it and make it subserve the necessities or conveniences of life. Its capability of being made thus available gives it a market value which can be readily estimated."

To like effect are the decisions of this Court in R. R. v. Mfg. Co.,169 N.C. 156; R. R. v. Armfield, 167 N.C. 464; Teeter v. Telegraph Co.,172 N.C. 784.

The above standard of award, as we understand the record, was adopted by his Honor in arriving at the different values placed upon the several properties. In this there was no error.

The judgment in favor of the petitioner in each of the above causes will be upheld.

Affirmed. CLARKSON, J., concurring.

ADAMS, J., not sitting, and taking no part in decision in this case.

The decision in this case is determinative of the following cases on appeal, to wit:

589. Carolina-Tennessee Power Co. v. Hiawassee River Power Co.

591. Carolina-Tennessee Power Co. v. Hiawassee River Power Co. et al.

592. Carolina-Tennessee Power Co. v. Hiawassee River Power Co. et al.

593. Carolina-Tennessee Power Co. v. Hiawassee River Power Co. et al.

594. Carolina-Tennessee Power Co. v. Hiawassee River Power Co. et al.

595. Carolina-Tennessee Power Co. v. Hiawassee River Power Co.

596. Carolina-Tennessee Power Co. v. W. H. Reese et ux.

597. Carolina-Tennessee Power Co. v. Hiawassee River Power Co. et al.

598. Carolina-Tennessee Power Co. v. Hiawassee River Power Co. et al.

599. Carolina-Tennessee Power Co. v. Hiawassee River Power Co. et al.

600. Carolina-Tennessee Power Co. v. Hiawassee River Power Co. et al.