Alabama Interstate Power Co. v. Mt. Vernon-Woodberry Cotton Duck Co.

65 So. 287 | Ala. | 1913

Lead Opinion

McCLELLAN, J. —

These three appeals were joined on submission. Their single assignment followed. While there are questions peculiar to each, the subject-matter giving rise to the several contests is common, in a large sense, to all of them. It is probable the'decision of some of the appeals might be had without, of necessity, considering fundamental questions that, to now determine, will promote the final adjudication of the matters of real controversy. There are a number of questions made by the respective solicitors that can properly arise, or be presented, only in the proposed condemnation proceeding. To consider them at this time would be premature. Broadly stated, the chief meritorious questions presented now involve the inquiry of authorized power vel non to condemn certain properties or rights in the asserted effort of the condemner to subject and appropriate them to public use.

The proposing condemner is the Alabama Interstate Power Company (hereinafter called the “Power Company” ). It was incorporated under the laws of the state of Maine. Its powers as conferred by the charter set out in the record are most ample for producing, supplying, and distributing “to the public light, heat, power, and any other thing to which electricity, or other form of energy, is now or may hereafter be applied.” The generation of electricity by means of the water power artificially afforded by a non-navigable water course in this state is the chief and manifestly authorized (by the charter) aim of the condemnor. Such main powers, together with all incidental powers, could not be conferred in broader, as well as more particular, terms than this charter employs. So far as charter powers are concerned, there can he no doubt of the complete authorization of the power company to construct, maintain and operate utilities, plants, and machinery to promote and effect the purpose generally stated above.

The application of electricity as a motive force or productive energy is a matter of common knowledge and of daily experience.. The generation of electricity by the employment of the means afforded by water power is a process so familiar that neither lawmakers nor courts can be ignorant of its general practicability and wide utility. In natural consequence, where the object of the proposing condemner is the production and distribution of electricity, as a motive power or agency, to the public, without discrimination, for the purpose of supplying power or heat, or other forces of a nature reasonably capable of promoting or affording a use or uses adapted to the general comfort or convenience of all those who may desire them, the use is “public” within the purview of the sovereign authority of the state expressed in the phrase the “right of eminent domain”; and, when authoritatively conferred by the state, the proposing condemner may exercise such right, according to the forms of law prescribed therefor.—Lewis on Eminent Domain, § 268; Walker v. Shasta Power Co., 160 Fed. 856, 87 C. C. A. 660, 19 L. R. A. (N. S.) 725; Jones v. North Ga. El. Co., 125 Ga. 618, 54 S. E. 85, 6 L. R. A. (N. S.) 122, 5 Ann. Cas. 526; Minn. C. & P. Co. v. Koochiching Co., 97 Minn. 429, 107 N. W. 405, 5 L. R. A. (N. S.) 638, 7 Ann. Cas. 1182; Helena Power Co. v. Spratt, 35 Mont. 108, 88 Pac. 773, 8 L. R. A. (N. S.) 567, 10 Ann. Cas. 1055; Minn. C. & P. Co. v. Pratt, 101 Minn. 197, 112 N. W. 395, 11 L. R. A. (N. S.) 105; Rockingham L. & P. Co. v. Hobbs, 72 N. H. 531, 58 Atl. 46, 66 L. R. A. 585; Power Co. v. Webb, 123 Tenn. 584, 133 S. W. 105; In re Niagara Company, 11 App. Div. 686, 97 N. Y. Supp. 853. The first-cited authority is particularly apt. We quote it:

“The furnishing of electricity to the public for light, heat, and power — that is, to such members of the public within a given territory as may desire the current for any or all of such purposes — is a public use for which the power of eminent domain may be exercised. ‘The knowledge recently acquired concerning electricity has made it possible to divide power into any desired portions and to freely transmit the same to almost any point for use. This has created a demand for power which, though not so universal as the demand for water, is nevertheless of a public character. Like water, electricity exists in nature in some form or state, and becomes useful as an agency of man’s industry only when collected and controlled. It requires a large capital to collect, store, and distribute it for general use. The cost depends largely upon the location of the power plant. A water power or a location upon tidewater reduces the cost materially. It may happen that the business cannot be inaugurated without the aid of the power of eminent domain for the acquisition of necessary land or rights in land. All these considerations tend to show that the use of land for collecting, storing, and distributing electricity, for the purposes of supplying- power1 and beat to all who may desire it, is a public use, similar in character to the use of land for collecting, storing, and distributing water for public needs — a use that is so manifestly public that, it has seldom been questioned and never denied.’ And where the object to be accomplished is the production and distribution of electricity to the public for any of the purposes mentioned, property and property rights may be condemned for whatever purpose is necessary to accomplish such object. Consequently land and water rights may be condemned for dams, reservoirs, canals, and flumes for the creation and utilization of water power to be used' in generating the electric current and for works for such generation. Also for works and rights of way for transforming, transmitting, and distributing the current.”

The power of eminent domain is an attribute of the sovereignty of the State. Except as restrained by organic law, it is absolute. The state may authorize its exercise by a foreign corporation, lawfully empowered to promote a public use. It may confer thereunder the right to take the property of corporations already condemned under the power of eminent domain.

“It is not the instrumentality employed for operating the public use, but the use itself, that satisfies the Constitution. The fact that the use is public and the public may have the privilege of enjoying it is the controlling-principle.”-—Columbus Water Co. v. Long, 121 Ala. 245, 25 South. 702; Steele v. Com'rs, 83 Ala. 304, 3 South. 761; M. & C. R. R. Co. v. R. R. Co., 96 Ala. 571, 11 South. 642, 18 L. R. A. 166.

Tf the use is public, the legislative judgment is conclusive upon the question of the expediency of authorizing the exercise of the power of eminent domain.—Sadler v. Langham, 34 Ala. 311, 330. The impolicy of an enactment to that end is no concern of the courts. If the state has authoritatively conferred the power, the courts would be guilty of manifest usurpation if they essayed to censor the policy of the grant, if they undertook a revision through the generally questionable method of an interpretation of the enactment in the light of their notions of what would have been better policy or wiser action.

Given a purpose to confer the power of eminent domain for a public use and conformity to constitutional methods for legislation, the only possible objections to the validity of an enactment to that end, which prescribes for compensation for the property taken, are: (a) That the enactment, on its face, is too indefinite or uncertain to be administered or, the power intended to be conferred, to be practically utilized; (b) that it illegally discriminates between members of the same class —the Legislature having the undoubted prerogative to classify the objects of its treatment so long as it does not arbitrarily create a class or classes. There being in the statute to be quoted no semblance of arbitrary classification, the basis for the second possible objection stated is not present. The power is broadly conferred. Under contingencies, cotton factories are the beneficiaries of an exception. Such factories as are within the exception could not be prejudiced, in any degree, by the statute. Those, only, Avhose rights are impinged by an enactment, may complain of its constitutional invalidity. Such factories as are not Avithin the exception must, of course, have their subjection to the law attributed to the broad, unclassified, nondiscriminatory power its terms confer. But aside from these considerations, if it should be affirmed that there is a classification in a primary sense, the discriminations are suggested by satisfactory reasons that appear from the face of the statute to have commended themselves to the lawmakers.

The statutory system upon Avhich the asserted right of the power company to condemn is predicated is to be found in article 19 of chapter 69 (Civil Code), section 3627 et seq. The main features of the system with which these appeals are concerned are set forth in section 3627. We quote it:

“All corporations organized under the general laws of this state or heretofore under a special act of the Legislature, and all corporations organized under the laws of any other of the United States, and which have complied with the Constitution and laws of the state of Alabama as to foreign corporations, and which by their charter have the right to manufacture, supply, and sell to the public, power produced by water as a motive force, shall, after acquiring by purchase or otherwise than by condemnation, a dam site or power site comprising not less than one acre of land upon each and opposite sides of any water course, in addition to other powers conferred by law, have the following rights, powers, and authority: To acquire by condemnation the lands and rights necessary for the construction and operation of said dam, and works connected therewith or useful thereto, either up or down stream therefrom, and (in the case of non navigable streams) to construct and operate at said site, or other point up or down the stream therefrom, and across said stream, a dam, together with all works incident, necessary, or related thereto, and in connection therewith to impound or divert water of any water course or water courses of this state, and to raise higher such dam and to enlarge the works necessary, related or incident thereto, and to construct other works necessary, incident or related thereto, either up stream or down stream therefrom, as may be required or deemed expedient by such corporation, in the manufacture and supply of power produced by water as a motive force. To acquire by condemnation all lands or waters or interests or rights of easements in lands or waters likely or liable to be- flooded or damaged by impounding or diverting the water of any water course in this state, or its tributaries, or necessary for the construction or operation of clams or power houses, or works necessary, incident, or related thereto, or likely or liable to be flooded or damaged by the construction or operation or enlargement of the dams, or works incident, necessary, or related thereto, or damaged or taken in the construction, operation, or use of canals, tailraces, or exit ways necessary, useful, or convenient for the escape, conveyance or return of the water used in the operation of the works or power plant. To acquire by condemnation the necessary lands for substations and transmission lines, but shall have no right to condemn a private residence, nor the outhouse, garden, nor orchard within the curtilage of a private residence, for a substation site or for rights of way for its transmission line or lines. Such corporation shall have no right to condemn lands, water, or water rights in use for power purposes by another corporation upon the same water course, having similar powers essential to its operations; or lands, water, or water rights held by such other corporation for power purposes where the lands, water, or rights in themselves and taken alone or in connection with other lands, water, or rights owned by such other corporation can be made the reasonable basis of a water power development of at least one thousand continuous horse power; but may condemn lands, hydraulic structures, water, or water rights held by such other corporation at any point upon the same water course, unless the lands, structures, or rights in themselves and taken alone or in connection with other lands or rights owned by such other corporation, can be made the reasonable basis of a water power development of at least five hundred continuous horse power; and may condemn lands, hydraulic structures, water, or water rights of such other corporation, at any point upon the same water course, in excess of such other corporation’s actual facilities for using the same (independently of • the actual or proposed works of the condemning party) for the manufacture of power by its plant as the same is already established at the time the condemnation proceeding is begun, provided the plant of-such other corporation has been in operation for five years or more preceding the commencement of the condemnation proceedings. Nor shall such corporation have the right to condemn the lands, hydraulic structures, water, or water rights of any cotton factory, at any point upon the same water course, in actual and prior use by it for the operation of its plant; but may condemn the lands, hydraulic structures, water, or water rights of such cotton factory in excess of what is actually in use, or may be used at normal stages of the stream, for the operation of its plant as already established at the time the condemnation proceeding is commenced. Such corporation may by condemnation acquire the right to flood grist mills and industries in conjunction therewith, together with lands and water rights appertaining thereto. In all cases just compensation shall first be paid to the owner in the manner provided by law for all property taken.”

It is too clear for doubt that the subjects of condemnation specified in the statute are properties or easements within the classes or characters of subjects of ownership which the state may, and has, if the statute is not void for uncertainty or indefiniteness, made amenable to appropriation, for a public use under the power of eminent domain.

From the express terms of the statute, the general authorization of certain agencies to condemn, under certain conditions, is unmistakable. The judicial forum and proceedings therefor are plainly and validly provided. The public purpose and use to be subserved by the authorization is manifest. The compensation to be made for the property taken is stipulated as a primary condition to the appropriation. So the only possible predicate for an insistence that the statute is void for indefiniteness or uncertainty is that, either it does not define or describe the subjects authorized to be condemned, or it fails to afford a necessary, essential means, method or formula whereby each subject of the authorization to condemn may be selected or individualized and the compensation therefor ascertained, awarded, and paid.

We cannot give sanction to any feature of this hypothesis with the result to attend that the statute would be annulled, in whole or in part. To do so would require of this court the assumption, in several particulars, of a common knowledge in immediate opposition to legislative declaration and enactment. In such a field as this statute intends operation and effect, this court cannot assume a superior information or wisdom to that the Legislature has evinced by formal enactment. While the statute is not phrased with the clearness other writers might have attained in the expression of the ideas it is intended to express, yet it is intelligible. The elements of adverse ownership it would subject to condemnation are plainly enumerated. It is unnecessary to repeat them. It is only when it comes to except, or to define by exclusion, what measure of, and when, certain properties or easements may be appropriated under eminent domain, that there appears a want of that high degree of clearness we are wont to expect in legal enactments or judicial pronouncements, but of the absence of which, in both, all regret to be too often aware. Notwithstanding this lack of the highest clearness, it. is made manifest by unequivocal terms in the statute that condemnation is not restricted in respect of the complete devotion of the elements enumerated in the statute, to the service of the largest public use and public service, of all possible water power which may be, under engineering skill and with great outlay, applied to the generation of motive force, provided established, elder industries are not denied or deprived of the saving made to their' behoof by the terms of the statute. The condemnation, except as restricted to preserve the benefits just mentioned, is not limited to the area, or things in propinquity to the dam provided for in the first paragraph in the statute. On the contrary, the cleár intent appears to be to allow the conception and effectuation of a large, maybe colossal, plan for the reduction to practical, serviceable energy the water power that skilled manipulation and control may extract from, or secondarily create upon, water courses in Alabama. The initial, major instrumentality for the accumulation, the condensation, as it were, of the latent, undeveloped water power must be the dam specified in the first paragraps of the statute. But the lawmakers, as we understand the statute, did not intend that the application of the power so created or accumulated should serve but once the public purpose to which it' might be devoted. They contemplated, and to that end so provided, that a power so, in a sense, created and so reduced to control should serve to generate a motive force so long as it might be subjected to extraction and transmission or translation as a component part of the scheme of which the dam, affording the impounding from which the accumulated power results, is the “head.” Hence it is in accord with this large conception of, and authority conferred by, tbe statute that, down stream, the entity the statute describes, and which conforms thereto in respect of the initial dam, should not be limited in the effectuation of its single conception and enterprise to the neighborhood of the dam, in order that a power so created and accumulated should yield its full, unexhausted utility and energy to the public service to which the grant necessarily consecrates it. But from this authorization, made to promote and accomplish the major purpose, exceptions are made. They are the product of reason and are rested upon conditions that merited, in the legislative view, conservation. Private residences and property embraced in the curtilage are excepted from condemnation for substation sites and transmission lines. The lands, water, and water rights in use for power purposes and essential to its operations, of another corporation having similar powers, are excepted. Lands, water, and water rights which alone or in connection with other lands, etc., can be made the reasonable basis of. at least 1,000 continuous horse power, are excepted. But lands corporately owned, hydraulic structures, water, and water rights, at any point upon the same water course, may be condemned unless they alone or in association with others owned by the corporation can be made the basis of a water power development of at least 500 continuous horse power; and condemnation may be had, under those circumstances, of those elements of ownership “in excess of such other corporation’s actual facilities for using same (independently of the actual or proposed Avorks of the condemning party) for the manufacture of power by its plant as the same is already established at the time the condemnation proceeding is begun.” Coming to provide Avith respect to a cotton factory, the lands, hydraulic structures, water, and water rights, at every point on the same water course, in actual and prior use by the cotton factory for the operation of its plant, cannot be condemned; bnt the excess of what is in actual use or may be used at normal stages of the stream, for the operation of its plant as already established at the time the condemnation proceeding is commenced, majr be condemned.

At the expense of repetition, after this analysis of the last paragraph of the statute, it is to be noted that the lawmakers intended the maximum in availing of water power. The major purpose was, manifestly, to avert the waste, or unappropriation, of the excess of water power, and with that purpose in view conferred the power to condemn that the excess, in lands, hydraulic structures, water, and water rights, might be husbanded and applied to the generation of a motive force. The statute’s theory and purpose and literal prescription do not approximate, even, the indefiniteness and uncertainty that requires the annulment of enactments on that account; unless that factor is found in its omission to define a means, method, or formula whereby the selection and distinct use of each of the subjects may be effected and the compensation ascertained and awarded.

It is, necessarily, the function of the tribunal in which condemnation of this character may be had to determine whether the statute-created conditions to the right to condemn a particular subject described in the statute exists have been met, and it is likewise the function of that tribunal to determine whether the particular subject sought to be condemned is within or without the exceptions made in the statute. That is its jurisdiction; and when invoked — not necessarily by an all-sufficient petition, immune from demurrer — no other authority can rightfully interpose to stay or defeat it. If the petition is insufficient, and does not alone describe as subjects of condemnation property or easements that cannot, under any circumstances, be condemned, the petition should be tested by motion or demurrer. And we may add at this point that a good part of the argument submitted on these appeals could only have bearing or effect upon issues raised by appropriate motion or demurrer addressed to a petition to condemn.

The statute has defined the subjects of condemnation. Was it the imperative obligation of the lawmakers to prescribe a method or formula whereby each of them might be selected? These subjects of condemnation were, all must admit, fully known to the Legislature. As described and enumerated by that branch of the government, they do not import mere abstractions. They relate to things and natural forces familiar to all. It is not contended, and could not- be, that, so far as the courts are concerned, lands, hydraulic structures, water, and water rights belong to- the wholly intangible, to the realm of the unknown, for the lawmakers, within their province, have enacted to the contrary. Neither can it be judicially pronounced, with the result to attend that the statute would be, in whole or in part, annulled, that the excess of water power, initially created and accumulated by a dam higher upstream, was and is incapable of separate ascertainment, distinct control, and individual application -to the generation of motive force or other form of energy. In adition to the necessary implication the statute affords — which excludes the idea that a right clearly conferred shall be unattainable because method or formula is not particularly prescribed, by the lawmakers, to select and effect the right — the courts are bound to assume, until the contrary is shown by evidence, that those skilled in such matters can and will, in a proper case under general rules of law, supply the practical knowledge and furnish the information to the appropriate tribunal that can and will render available rights, to the public benefit, which the Legislature has unmistakably conferred. If the courts should assume to pronounce void the feature of the statute that provides for the appropriation of the excess of the subjects specified in the statute, it would involve the assertion of a superior common knowledge that does not obtain, and the affirmation, without sound invitation thereto, that the Legislature, in these respects, wrote to no purpose. We find no warrant to annul the statute, in these particulars, in the earnest assertions of fact to that end, which in pleading and brief, are pressed upon us. If upon the hearing of a condemnation proceeding, involving an attempt to condemn an excess the statute describes, the petitioner should fail to meet its obligation to afford the evidential data wherefrom the court may proceed to judgment in the premises, manifestly there could be no valid condemnation — the statute’s conferred right would be vain because of the petitioner’s failure to meet its obligation. But, obviously, the statute would not be void. So, in omitting the prescription of method or formula for selecting, individualizing, extracting, or controlling the excess allowed to be appropriated, the statute is not invalid. The manifest legislative expectations that engineering skill would enable the courts to give full effect to the rights conferred by the statute might, in these days of great engineering skill and achievement, and until the contrary is made to appear in a concrete case, be assumed to be entirely justified. Certainly, the courts cannot, at this stage and on these records, adversely declare.

The criticism of the policy of and general effect attributed to statute by the solicitors for the Tallassee Company have been read with interest. Whether it is well founded is not for the courts to say. Given an enactment that is intelligible on its face and offends no> provision of the Constitutions, state or federal — as this statute does not — the courts have no choice or discretion. They must declare and administer the law as written. Its change, if desired by the people of the state, must come through legislative, not judicial, fiction. The taking of property or easements under eminent domain presupposes the deprivation of the owner in the essential provision for compensation, and the theory, confirmed in the law, embraces the idea that for such deprivation the compensation awarded makes the owner whole. The inconvenience or loss that attends condemnation are all necessarily merged in the sum awarded as compensation. The rules of law for the ascertainment of the sum to be awarded are too well settled— have been too often announced — to need reiteration. So, too, the apprehension, if entertained, is ill-founded that, if condemnation is allowed, the condemnor may, with out restraint, transgress its limits or from that point of vantage interfere with rights not condemned. The courts can and will confine every condemnor to the field of his right. It is a main office of the particularity required in the description of the subject of condemnation that the condemned s right may be accurately, judicially ascertained and his activities or use confined thereto.

On May 25, 1912, the «power company sought by petition to condemn certain property and rights below the site of its proposed dam on the Tallapoosa river. Parties related in interest to the property and rights sought to be condemned were made respondents in the petition. The hearing was set for a day certain. A few days prior thereto the judge of the Fifth judicial circuit issued, on the respondents’ petition, rule nisi or alternative writ of prohibition requiring the stay of proceedings in or by the probate court in the condemnation matter and ordered the probate judge to show, by the next term of the circuit court of Tallapoosa county, why the hearing of the condemnation proceeding should not be prohibited. The ground of this petition for the writ of prohibition was that the probate court had no jurisdiction to proceed in the premises. An appeal was taken to this court from this order of the judge of the circuit, security for costs was given, and a supersedeas bond executed “all as provided,” counsel for the power company assert, “by section 2843 of the Code.” This is cause numbered 470 on our docket.

After this appeal was taken from the order of circuit judge, the Tallassee Falls Company and the other respondents in the condemnation proceeding filed their bill in the chancery court of Tallapoosa county whereby injunctive process was sought to effect the purpose manifested by the alternative writ of prohibition, it being made to appear that the probate court — -attributing as it did to the appeal and supersedeas the effect of rendering wholy inefficient the order for the alternative writ of prohibition — -intended, and was arranging, to- proceed with the hearing and determination of the condemnation proposed. Demurrer was sustained to this bill for want of equity, and the injunction pendente lite was dissolved. An appeal was taken. This is cause numbered 472 on our docket.

On May 11, 1912, the power company filed its bill, in the city court of Montgomery, against the Tallassee Falls Company, seeking injunctive process to restrain threatened resistance or interference by the defendant or its agents in order that the complainant’s representative might make the preliminary (to proceedings to condemn) investigations and surveys under Code, § 3493. The motion to discharge or to dissolve the injunction pendente lite was overruled and the equity of the hill affirmed by the city court. An appeal was taken to this court, where this cause is given number 23. The statement, in substance, of the petitions and bills inviting this consideration, is left to the Reporter.

The petition for condemnation has been carefully considered by the court. The statutes (sections 3627 et seq.) upon which the right to condemn being constitutionally valid, and authority for proceedings, in the probate court, to that end being afforded by Code, § 3860 et seq., no doubt is entertained that the jurisdiction of the probate court of Tallapoosa county was invoked by that petition. Its sufficiency as upon motion or demurrer is not considered. Its sufficiency is neither affirmed nor denied. The judicial power to initially hear and determine the question of the freedom of the pleading from amendable defects is, in this character of proceeding, alone conferred by law upon the probate courts, the jurisdiction of which is invoked. Nor is it proper or nec: essary that this court should, at this stage, determine whether every subject of condemnation sought in the petition may be condemned. The probate court’s jurisdiction to hear and determine having attached, that inquiry will be considered and decided by that court. The statutory system for proceeding under eminent domain (Code, § 3860 et seq.) affords ample method and opportunity to contest, and to contest every ruling or action' of the trial court during the progress of the hearing and leading to its judgment. It cannot be anticipated or presumed that error favorable or unfavorable to any party will attend the progress of the contest through the pro- . bate court.

Since the writ of prohibition can legally, only, issue to prevent a usurpation of jurisdiction or an excess of jurisdiction, the alternative writ of prohibition issued by the judge of the fifth circuit was improvidently issued. It is quashed and vacated. And, in sequence, the decree of the chancellor in cause (our number) 472 is affirmed; for that bill, independent of other fatal considerations, was, in substance, but an effort to compel obedience to alternative writ improvidently issued by the judge of the circuit.

Under the conclusions prevailing with respect to the right to condemn provided by the statutes, our opinion concurs with that given effect by the city court in cause numbered 23.

Code, § 3493, provides:

“Railroads, mining corporations, etc., may enter on land to make survey, examinations for proposed lines, works, etc. — Railroads, street railroads, and mining, manufacturing, power, and quarrying, telegraph and telephone, and other corporations having rights and powers to condemn, may cause such examinations and surveys for their proposed railroads, or lines, as may be necessary to the selection of the most advantageous routes and sites, and for such purpose may, by their officers, agents, and servants, enter upon the lands and waters of any person, but subject to liability for all damages done thereto, and may, in the construction of their lines or sites, cross navigable streams, but must not impede the navigation thereof; may use, cross, or change public roads, when necessary, in the construction of their railways, switches, branches, lines, or buildings, and must place the public road so crossed, used, or changed, in condition satisfactory to the county authorities having the control thereof, but where practicable the railroads must go over or under the public roadway, or railroad track, and may also cross or intersect with any other railroad or street railway, and if such crossing or intersection cannot be made by contract or agreement, may acquire the rights thereto by condemnation in the mode provided by law.”

The temporary right, and consequent limited immunity (State v. Simons, 145 Ala. 95, 40 South. 662), conferred by this statute,- is necessarily incident to, and preliminary of, authorized proceedings to condemn, instituted by the entities mentioned therein. Manifestly, the right thereby established is not conditioned — otherwise than upon an authoritative prerogative to exercise the power of eminent domain — upon any other contingency than that the corporations mentioned shall have in contemplation (not already instituted) proceedings to exercise the rights and powers to condemn. The obvious purpose of the statute ivas to allow preparatory, preliminary investigations and surveys in order, to properly prepare for, and to' intelligently invoke, condemnation proceedings. The right conferred is valuable and essential to the object it has in view. The order and object and nature of this statutory right — with reference to the later institution of condemnation proceedings— would logically suggest a statutory authorization of the courts where condemnation proceedings are alone initiable, viz., the probate courts, to effect its intent through appropriate orders. But there appears to* be no such legislative provision.

In this state of the law, equity alone can vindicate and effectuate the right the statute confers. Where the entry, for the statutory purpose, is resisted or will be resisted in such a way as to render probable a clash, between the proprietor and the proposing condemnor’s representatives, and the opposition of force to defeat the investigation and survey assured by the statute, no other remedy is afforded by our courts than that of injunctive process issuing upon a bill in equity fairly disclosing the right to enter for the limited temporary purpose the statute provides and showing, through appropriate averments, that the proprietor whose premises are desired to be entered, under the right created, has threatened or will resist or unduly affirmatively hinder the effectuation of such right of entry. As indicated before, the then pendency of proceedings to condemn is not essential to the equity of such a bill. The right established by this statute (section 3493) is conferred upon corporations of the character, and created for the purposes, of the Alabama Interstate Power Company, the leading charter powers of which have been mentioned. While the statute employs words in inapt relation to some kinds of “manufacturing” and “quarrying” corporations having the power to condemn, there appears from the whole statute an unmistakable legislative intent to confer the right upon corporations other than those commonly called railroad, telephone, and telegraph companies. The enumeration of the repositories of the right made in the first sentence of the statute negatives the notion that only corporations intending the construction of purely transportation agencies are within the statute. The reference to changes wrought by the construction of railways, etc., has no effect to qualify the ample authorization made in the first part of the statute; and these references are, of course, apt in respect of corporate proposals of the character naturally leading to the changes such constructions may make in highways, etc., and not at all inconsistent with the interpretation that the right established is conferred on “manufacturing” and other corporations having the rights and powers to condemn. We cannot read the statute in the very restricted sense in which it is contended it should be read.

Causes numbered 23 and 472 are affirmed. In cause numbered 470 judgment is entered quashing and vacating the alternative writ of prohibition and dismissing the petition therein.

Dowdell, C. J., and Sayre and Somerville, JJ., concur.

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Dissenting Opinion

de GRAFFENRIED, J.—

(dissenting). — 1. Section 23 of the Constitution provides that:

“Private property shall not be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner.”

The entire theory upon which the doctrine of eminent domain is based is that the private right in a particular piece of property shall give way to the public good. Of course, coupled with the doctrine is the essential requirement that the private individual whose rights are thus invaded shall receive compensation in money for the property condemned to the public use.—People v. Salem, 20 Mich. 452, 4 Am. Rep. 400; Sadler v. Langham, 34 Ala. 311; Western Union Tel. Co. v. S. & N. A. R. R.Co., 184 Ala. 66, 62 South. 788.

2. Sections 3627 and 3636 of the Code of 1907 belong to the same article of the Code, relate to the same subject, are in pari materia, and, confessedly, must be read and construed together. Those sections are as follows:

“All corporations organized under the general laws of this state or heretofore under a special act of the Legislature, and all corporations organized under the laws of any other of the United States, and which have complied with the constitution and laws of the state of Alabama as to foreign corporations, and which by their charter have the right to manufacture, supply, and sell to the public, power produced by water as a motive force, shall, after acquiring by purchase or otherwise than by condemnation, a dam site or power site comprising not less than one acre of land upon each and opposite sides of any water course, in addition to other powers conferred by law, have the following rights, powers, and authority: To acquire by condemnation the lands and rights necessary for the construction and operation of said dam, and works connected therewith or useful thereto, either up or down stream therefrom, and (in the case of nonnavigable streams) to construct and operate at said' site, or other point up or down the stream therefrom, and across said stream, a dam, together with all works incident, necessary, or related thereto, and in connection therewith to impound or divert water of any water course or water courses of this state, and to raise higher such dam and to enlarge the works necessarily related or incident thereto, and to construct other works necessary, incident or related thereto, either up stream or down stream therefrom, as may be required or deemed expedient by such corporation in the manufacture and supply of power produced by water as a motive force. To acquire by condemnation all lands or waters or interests or rights or easements in lands or waters likely or liable to be flooded or damaged by impounding or diverting the water of any water course in this state, or its tributaries, or necessary for the construction or operation of dams or power houses, or works necessary, incident, or related thereto, or likely or liable to be flooded or damaged by the construction or operation or enlargement of the dams, or works incident, necessary, or related thereto, or damaged or taken in the construction, operation, or use of canals, tailraces, or exit ways necessary, useful, or convenient for the escape, conveyance or return of the water used in the operation of the works or power plant. To acquire by condemnation the necessary lands for substations and transmission lines, but shall have no right to condemn a private residence, nor the outhouse, garden, nor orchard within the curtilage of a private residence, for a substation site or for rights of way for its transmission line or lines. Such corporation shall have no right to condemn lands, water, or water rights in nse for power purposes by another corporation upon the same water course, having similar powers and essential to its operations; or lands, water, or water rights held by such other corporation for power purposes where the lands, water, or rights in themselves and taken alone or in connection with other lands, water, or rights owned by such other corporation, can be made the reasonable basis of a water power development of at least one thousand continuous horse power; but may condemn lands, hydraulic structures, water, or water rights held by such other corporation at any point upon the same water course, unless the lands, structures, or rights in themselves, and taken alone or in connection with other lands or rights owned by such other corporation can be made the reasonable basis of a water power development of at least five hundred continuous horse power, and may condemn lands, hydraulic structures, water, or Avater rights of such other corporation, at any point upon the same water course, in excess of such other corporation’s actual facilities for using the same (independently of the actual or proposed works of the condemning party) for the manufacture of power by its plant as the same is already established at the time the condemnation proceeding is begun, provided the plant of such other corporation has been in operation for five years or more preceding the commencement of the condemnation proceedings. Nor shall such corporation have the right to condemn the lands, hydraulic structures, water, or water rights of any cotton factory, at any point upon the same water course, in actual and prior use by it for the operation of its plant; but may condemn the lands, hydraulic structures, water, or water rights of such cotton factory in excess of what is actually in use, or may be used at normal stages of the stream, for the operation of its plant as already established at the time the condemnation proceeding is commenced. Such corporation may by condemnation acquire the right to flood grist mills and industries in conjunction therewith, together with lands and water rights appertaining thereto. In all cases just compensation shall first be paid to the owner in the manner provided by law for all property taken.”- — Section 8627.

“Any corporation which exercises any of the rights conferred by this article, shall, after the completion of its works and plants, be under the duty and obligation to the public to manufacture and sell to the public electric current produced at its plants, and any corporation manufacturing, selling and supplying power, heat, light, -or electricity produced by water as a motive force under the provisions of this article, must sell such power, heat, light, or electricity to any person or persons, municipal or other corporations, in the order in which requests or demands are made for such light, heat, power, or electricity. Nothing herein, however, shall be construed to require any such corporation to furnish light, heat, power, or electricity to any person or persons, corporation or corporations, until satisfied of his or its financial responsibility, and except in conformity with its reasonable rules and regulations ' and reasonable prices for the same, and except as far as the capacity of its plant will permit.” — Section 3636.

3. I direct attention to that clause in section 3636 of the Code which declares that “any corporation which exercises any of the rights conferred by this article, shall, after the completion of its works and plants, be under the duty and obligation to the public to manufacture and sell to the public electric current,” etc. In other words, under the express language of section 3636 of the Code, the Alabama Interstate Power Company will be under no duty to serve the public until it constructs its dam at the dam site which It has obtained by purchase and at said dam site has completed its necessary works and plants. In fact, a careful reading of section 3627 of the Code and of the entire article of the Code of which it forms a part convinces me that it was the plain purpose of the legislature, in said section and article, to invest, first, the right of condemnation, in the corporation seeking to take advantage of its terms, of all properties necessary to the proper construction of a dam, power plant, and other structures necessary and appropriate to its use for the purposes indicated in the chapter, and then, after the construction of such dam, power plant, and other structures, etc., at such dam site, second, the right to condemn, below the dam power plant, etc., so constructed on the same stream, the unused and unneeded parts of other dams, hydraulic structures, etc. It is, of course, necessary that a corporation which is chartered to serve the public shall be given the right to condemn sufficient private property to enable it to complete the works necessary to the proper performance of its public functions. In the instant case the .Interstate Power Company has purchased a dam site on the Tallapoosa river, a nonnavigable stream, and, while it alleges in its pleadings that it has expended much money in and about its contemplated improvement, it does not allege that it has constructed or even commenced the construction of a dam, a power plant, or any other sort of hydraulic structure on said stream at said dam site or at any other point on said stream. While its pleadings abound in allegations as to what the Interstate Power Company intends in. the future to do, the bald fact remains that all that it really shows, by its pleadings to have actually done, is that it has bought, on each side of the Tallapoosa river, an acre or two of ground as a site for a dam which it intends in the future to erect for the purpose of impounding the waters of the river above the dam. I can readily see how the acquisition by the power company of this dam site can be held to confer upon it the right of condemnation of lands and properties above the dam site which are likely to be needed by the company in impounding the water above the clam. I can also readily see that, if the company now needs more land than it now possesses at or near the dam site, either up or down the stream for the purpose of properly constructing its dam, .power house, and other necessary structures, it should be held to possess the power to condemn such lands. In so far as the instant case is concerned, the purchase by the Interstate Power Company of the dam site was a necessary preliminary tO' the erection by it of a dam or dams on the Tallapoosa river and through the water thus impounded above the dam or dams to serve the public. As it was thought by the legislature that the water thus impounded ábove the dam or dams would, when a power company authorized to exercise the powers conferred by the article commenced operations, increase the normal flow of water in the river below the dam or dams, the legislature conferred the power, to be exercised as an incident to the real, true improvement of the river by the power company because of the erection of such dam or dams, to condemn the unused and unneeded portions of dams, etc., of private parties down stream. In this way the power company could perpetually, at all available points down the stream, get the benefit of the increased power which the water which it had impounded had added to the stream, and at the same time do no harm to a private enterprise already established on the stream below the dam.

4. Under the holding of the majority, a foreign cor-oration which has obtained a license to do business in this state has, in so far as the real truth of this matter is concerned, by the purchase of an acre or two of ground on each side of the Tallapoosa river, acquired the right to now condemn to its use all of the unneeded portions of every private dam on the river below the proposed dam site, although it is not required by the act under which this power of condemnation is held to have been conferred to do any service for the public until “after the completion of its works and plants” at the proposed dam site. In my opinion this proposed condemnation of property 10 miles below the proposed dam site is shown by the pleadings to be totally unnecessary to the-erection by the Interstate Power Company of its “works and plants,” has no connection with such erection, and that, until the power company sees proper to" complete its “works and plants,” no public necessisty for the proposed condemnation can be shown. When the “works and plants” have been completed — if, indeed the power company sees proper at some time in the future to do so — then, according to my construction of the statute the power company may be held to possess the power it now seeks to put into exercise. In my opinion the completion by the power company of its “works and plants” is a condition which must precede any such condemnation as is sought by this proceeding.

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Dissenting Opinion

SAYRE, J.—

(dissenting in part). — In my opinion the completion of the dam at Cherokee Falls and the enlargement thereby of the normal power capacity of the stream is a condition precedent to the right of the power company to condemn the hydraulic or other structures of the Tallassee Company. Hence I think the survey of the Tallassee Falls property was undertaken prematurely and without authority to be found in the statute or elsewhere. The Tallassee Falls Company had therefore the right to prevent intrusions upon its property, though made under the pretense of a preliminary survey. I hold therefore that the decree of the city court of Montgomery should be reversed.

I concur in the conclusion reached in the other cases on the ground that the questions there sought to be raised will have proper consideration in the probate court.

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Rehearing

ON REHEARING.

PER CURIAM. —

Upon consideration, the applications for rehearing are denied.

Case Details

Case Name: Alabama Interstate Power Co. v. Mt. Vernon-Woodberry Cotton Duck Co.

Court Name: Supreme Court of Alabama

Date Published: Dec 4, 1913

Citation: 65 So. 287

Court Abbreviation: Ala.