106 F.2d 913 | 5th Cir. | 1939
The plaintiff-appellant, Florida Blue. Ridge Corporation, a corporation of Delaware, sued Tennessee Electric Power Company, a corporation of Maryland but domesticated in Georgia, to remove a cloud upon its title to lands in Georgia caused by a deed held by the Tennessee Company from Toccoa Electric Power Company purporting to convey easements over the lands, to declare the easements abandoned, to enjoin the Tennessee Company from trespassing on the lands, and for damages. The suit was dismissed on motion as setting forth no cause for suit, and appeal taken.
-The principal facts alleged are, in order of time, these: The Tennessee Company, operating hydro-electric generating and distribution plants'in Tennessee, desired to establish one higher on the same stream in Georgia. As a foreign .corporation it could not under Georgia law condemn the necessary property. It organized a Georgia corporation, called Toccoa Power Company, subscribing’ for all the stock, with qualifying shares issued to five of its officers and employes. The charter was held invalid. Rogers et al. v. Toccoa Power Co., 161 Ga. 524, 131 S.E. 517, 44 A.L.R. 534. Then the Toccoa Electric Power Company was chartered, the stock being similarly held. On a suit by the same persons this charter was sustained. Rogers v. Toccoa Electric Power Co., 163 Ga. 919, 137 S.E. 272, and the Company in 1927 condemned easements over the lands of Rogers and others, paid for them, and established a power dam and a generating and transmission plant, and began operating it. The plaintiff corporation acquired these lands expressly “subject to such rights, if any, as Toccoa Electric Power Company had by reason of condemnation proceedings in Fannin County, Georgia.” On January 6, 1936, Toccoa Electric Power Company deeded to Tennessee Electric Power Company all its property, real, personal and mixed, including easements, rights and franchises, in Georgia and Polk County, Tennessee, the deed being attested and acknowledged in Tennessee. The deed recites that the Tennessee Company is duly authorized to carry on business in the States of Tennessee and Georgia. On June 8, 1936, the Tennessee Company applied to the Georgia Secretary of State for domestication which was granted July 3, 1936. November 30, 1936, the Toccoa Company filed petition to surrender its charter, which was granted December 29, 1936, and that corporation was dissolved. The Tennessee Corporation has since maintained the dam in Georgia, withdrawing water from the lake at will not only to generate power there but to feed its plants below, causing harmful variations in the Lake level and yielding profits to the Tennessee Company, for which compensation is sought as for a trespass.
It is not claimed in the petition or brief that what the Tennessee Company is doing is in excess of the easement condemned and therefore a trespass, but' only that the easement is at an end and plaintiff’s land is free of it; or at least that the Tennessee Company cannot enjoy it.
It is also urged that the State of Georgia had not consented to the transfer of the easement and franchises by its corporation, and the State of Maryland had not consented for its corporation to accept them. The charter of the grantee, the Maryland Corporation, is not exhibited nor its scope pleaded. We have no reason to suppose that it did not authorize the exercise of franchises and easements in Georgia of the same sort it was exercising in Tennessee. The record is also silent as to what the Georgia corporation’s charter contained, but we may assume it gave the usual power to sell any or all of its property. See Biggs v. McBrayer, 174 Ga. 244, 162 S.E. 787. It could sell an easement of flowage as mere property. But it is said that what was really sold was the franchise of making and selling electricity to the public, a public utility business regulable by the Georgia Public Service Commission, which was no more transferable than the franchise to run a public railroad. It is true that a railroad sold or leased without legislative provision otherwise leaves the original grantee of the franchise responsible to the public for its right use. Singleton v. Southwestern R. R., 70 Ga. 464, 48 Am.Rep. 574; Bennett v. Western & Atlantic R. R., 42 Ga.App. 821, 157 S.E. 365. But there is no holding that by an unauthorized sale the right of way easements are destroyed, or that the owners of the servient lands can stop the operation of the railroad. The further claim that the two corporations were competitors and the transfer was to suppress competition and create monopoly and therefore contrary to public policy is supported by no facts. The petition in substance says there was no competition, that the Tennessee Company has always owned and controlled the Toccoa Company and its business, and except in form things are now as they have always been. If public policy has been violated it lies with the State and not a private landowner to set the matter right. American Mortgage Co. v. Tennille, 87 Ga. 28, 13 S.E. 158, 12 L.R.A. 529; State of Georgia v. Central of Ga. R. Co., 109 Ga. 716, 35 S.E. 37, 48 L.R.A. 351; Kerfoot v. Farmers’ & Merchants’ Bank, 218 U.S. 281, 31 S.Ct. 14, 54 L.Ed. 1042. On such a contention a stockholder might have better standing. Central R. Co. v. Collins, 40 Ga. 582, 583. Under the Georgia statutes, Code, § 93-304, the Public Service Commission has authority over “electric light and power companies, corporations, or persons owning, leasing, or operating public * * * electric light and power plants furnishing service to the public.” It does not matter whether the corporation be foreign or domestic. A transfer of the business from one to the other does not affect the public or the powers of its representative the Commission. Nor does it affect practically this plaintiff as owner of land subject to an easement of flowage. Indeed on the subject of legislative consent to this transaction it is plausibly argued that an explicit consent is found in statutes embodied in Code Sec. 94-1014, for a domestic or foreign electric railroad corporation to acquire the property rights and franchises of another such railroad company or a power company in Georgia, and for the latter to dispose thereof. We do not rest the case on this statute because it does not well appear that the Tennessee Company is such a corporation as the statute mentions. But we may again observe that for all we know the State of Georgia in the Toccoa charter may have granted its franchises to it and its assigns.
There remains the question of private land law, whether the easements, because acquired through condemnation by the Toccoa Company, have ceased because of the owners’ conveyance and dissolution. The plaintiff may certainly raise this question, and if the easements have ceased
Judgment affirmed.