123 F. 707 | D.S.C. | 1903
On 3d March, 1903, the General Assembly of South Carolina passed an act to authorize the construction of a dam across Kinloch creek, in Georgetown county. 24 St. at Large, p. 246. The preamble of the act recites the necessity of constructing' a dam across Kinloch creek in order to drain certain lowlands in the county of Georgetown subject to overflow by reason, of high tides and freshets in Santee river; that 'the construction of the
The case has been heard upon a motion for an injunction. For this purpose have been used the verified bill and numerous affidavits on behalf of the complainant and of the defendants. Kinloch creek is a stream in the lowlands near the coast of South Carolina. Rising from very small beginnings a short distance from the coast, it flows in an easterly direction, receiving Bluff Back creek as a tributary, and empties into Minim creek, which, after its junction with Kinloch creek, empties into the North Santee river. The dam formerly erected by the defendants, and which, under the agreement with complainant and F. W. Ford, had been removed, was constructed on Kinloch creek below its junction with Bluff Back creek. Both ends of this dam were on lands of the defendants. The floodgate had been placed on the southerly end of the dam, and a trunk at the other end of the dam, both the floodgate and trunk being on lands of the defendants. Presumably it is the intention of the defendants, in the exercise of the privilege granted by the legislature, to build another dam near, if not upon, the location of the former dam.
The first question which arises in this case—as, indeed, in all cases in federal courts—is as to the jurisdiction of the court. The action is between citizens of the same state. The only ground of jurisdiction is that the case involves questions arising under the construction or application of the Constitution of the United States. Cohens v. Virginia, 6 Wheat. 264, 5 L. Ed. 257. For the federal question we must examine the allegations of the bill alone. The federal question must appear upon its face. Tennessee v. Union & P. Bank, 152 U. S. 454, 14 Sup. Ct. 654, 38 L. Ed. 511. The bill sets up violations of the Constitution of the United'States, and also violations of the Constitution of South Carolina. Unless the federal question thus set up appears to be specious (Illinois Central v. Chicago, 176 U. S. 656, 20 Sup. Ct. 509, 44 L. Ed. 622), the court must take jurisdiction. The fact that a question made in good faith is presented to the court for its decision gives it jurisdiction of the case. Illinois Central v. Adams, 180 U. S. 28, 21 Sup. Ct. 251, 45 L. Ed. 410. And, there being a federal question in the case, the court can go on and decide every other question, whether federal or not. The ultimate question upon which the case may turn, whether of federal, local, or general law, is a matter which in no wise affects the jurisdiction of the case. Mayor v. Cooper, 6 Wall. 247, 18 L. Ed. 851; Tennessee v. Davis, 100 U. S. 257, 25 L. Ed. 648; St. Paul, etc., Ry. Co. v. St. Paul & N. P. R. Co., 68 Fed. 10, 15 C. C. A. 167. The bill states that the amount in controversy is over $2,000. It alleges consequential as well as direct damages. It is the claim set up by the complainant which fixes the jurisdiction of- the court (Pine v. The Mayor [C. C.] 103 Fed. 338); not a claim evidently fictitious, and alleged simply to create jurisdiction, but a claim made in good faith upon grounds however fallacious or untenable (Schunk v. Mo-
As to the Merits.
The contention of the complainant is that the authority given to the defendants to construct a dam across Kinloch creek cannot be exercised: First. Because Kinloch creek is a navigable stream, and so a public highway, whose use by the citizens of the state is secured forever by section 1, art. 14, of the Constitution of South Carolina, declaring that all navigable streams within the limits of the state shall be common highways, and forever free as well to the inhabitants of the state as to the citizens of the United States, without any taxes or impost therefor, unless the same be expressly provided for by the General Assembly. Second. Because, whether it be a public highway or not, its use is secured him as a riparian proprietor on the said creek. Third. Because he is the owner of a valuable mill site on Santee river, which is connected by a canal with Bluff Back creek, a tributary of Kinloch creek. The deprivátion of this right to use Kinloch creek, occasioned by the act in question, takes away his property for a private purpose without compensation. Fourth. That the act in question is invalid, because none of the conditions for its consideration and introduction by the General Assembly prescribed in section 31, art. 3, of the Civil Code of South Carolina, have been complied with. Fifth. Apart from and irrespective of these considerations, the defendants are under contract with him not to obstruct this stream, and the act in question impairs the obligation of that contract.
The first question which comes up on consideration of the merits of this motion is: Is Kinloch creek a navigable stream, either as a navigable water of the United States or navigable under the laws of South Carolina? The distinction between these classes is seen in The Montello, 11 Wall. 411, 20 L. Ed. 191:
“It—tlaat is, a stream—can only be deemed navigable water of tbe United States when it forms itself, or by its connection with other waters, a con-*713 tinned highway over which commerce is or may he carried on through other states or foreign countries in the customary mode in which such commerce is. conducted by water. If, however, the stream is not of itself a highway for commerce of other states or foreign countries, or does not form such highway by its connection with other waters, and is only navigable between different places within the state, then it is not a navigable water of the United States, but only a navigable water of the state.”
In order to make a stream navigable by the public, it is not enough that it is floatable—that is, capable of floating vessels or other craft. It must be a public highway. To be a public highway, it must have a terminus, a quo the public can enter it, and a terminus ad quern they can leave it. Young v. Culbertson, 1 MacQ. H. L. Cases, 455. In State v. Duncan, 1 McCord, 404, the defendant was indicted for obstructing a bold creek making in from Ashley river within the limits of the city of Charleston. It was not disputed that Ashley river was a public highway, but it was not shown that it ended at or had on it a public terminus. This was held essential to convict the defendant for obstructing a highway. See Chisholm v. Caines (C. C.) 67 Fed. 287, for a discussion of this question and the authorities there quoted sustaining this position. The Montello, above quoted, states the same doctrine. Does Kinloch creek answer this definition?
As has been seen, it empties into Minim creek, which last creek flows into the Santee river, a public highway. This gives one terminus to the public. The complainant contends that there is on Kin-loch creek, or tributary thereto, another terminus through a canal leading to a landing on a public highway or road which runs into the upper part of the state. In 1816 (8 St. at Large, p. 277) the General Assembly of South Carolina granted a charter to the Winyah & Wando Canal Company. This charter authorized the construction of a canal from Santee river to Winyah Bay through such place as may seem to the company most convenient. The act required the corporation to commence and prosecute the proposed canal within two years, and to complete it within seven years. The conditions of the charter were not fulfilled, and so the franchise was forfeited. In 1831 (8 St. at Large, p. 370) this charter was revived. The act reviving the charter provided that the charter would be forfeited in case the reviving company did not commence work on the canal within three years, and complete that part of the canal between Winyah Bay and Santee river within six years, from the passage of the act. On a map of Georgetown county, of date -, in Mills’ Atlas, a canal is represented running from' Winyah Bay to Kin-loch creek. Its entrance into Kinloch creek is above the location of the proposed dam. There is no other evidence that this is the canal spoken of in the act. There is no evidence that it has ever been completed. There is a canal dug from. Kinloch creek at a point above this location of the dam in question. It rqns between lands of the defendants and of Mrs. F. W. Ford, and finally is lost in the woods. It is used for the drainage of these' lands. There is a public road crossing this canal by a bridge a short distance from Kinloch creek connecting the lands on the Santee with the up-country of South Carolina. The great preponderance of the evidence is that at this bridge there is no public landing, and that no landing at this bridge was ever used by the
Even although Kinloch creek may not be a navigable water of the United States, nor a navigable public stream, and so a public highway under the laws of South Carolina, still riparian proprietors have a right to use the same for their own private purposes, carrying their products to market and bringing supplies to their lands. Neither the bill nor any of the affidavits discloses the fact whether there are any riparian proprietors on Kinloch creek proper above the dam other than these defendants. The act of the Legislature in question says that the defendants own almost entirely all these lands, and, if there be any other riparian proprietors than they, the act reserves to such proprietors, if any there be, the right to bring an action for any injury the dam may occasion them. The complainant claims to be a riparian proprietor on two grounds: First, because his plantation on Minim creek is directly opposite to the entrance of Kinloch creek into Minim creek; second, because he owns a valuable mill site on Santee river, which is connected by a canal with Bluff Back creek, through which the product of the mill can be carried through Kinloch creek, and thence to market. The fact that the plantation of complainant is opposite the mouth of Kinloch creek can give him no claim as riparian proprietor to use thé navigation of that.part of the creek above the dam. He has no lands above the dam on that creek between which and this plantation there would be intercourse.
It is said that by reason of the dam the water which came in from the Santee on tides and freshets would not find a free escape into .Kinloch creek, and would be pressed back on the plantation on Minim
With regard to the mill site on Santee river, the defendants deny the title of complainant in this mill site, and, at the least, insist that he is estopped by his deed conveying to them the Newlands plantation, which is adjacent to this mill site. This deed of conveyance gave but one boundary of the Newlands plantation on the south, and that boundary is Santee river. This is said to estop the complainant from asserting that the small mill site is not included in that boundary. On this important question of title it is not advisable at this stage of the case to determine it by the very unsatisfactory mode ■of proof furnished by affidavits. But admitting, for the present, title in the mill site in complainant, has he established the connection of this mill site by way of canal with Bluff Back creek ? This parcel of land called a mill site was once known as the “Tilton Mills.” It was the site of a ricemill put up by a firm of which Tilton, Pringle, the Horrys, and Trapier were partners. The enterprise proved disastrous, and the property was sold to pay the debts of the copartnership. It was conveyed to F. L,. Frost in November, 1872. This deed does not mention Bluff Back creek, nor any canal connecting the mill site with that creek, nor any canal at all. On the 4th October, 1901, F. L. Frost conveyed this property to the complainant,- and in his deed there is no mention of Bluff Back creek, or of a ■connecting canal, or of any canal. There is mention of rights of way -over the Bluff and Newlands plantation. But it can hardly be said -that these words convey the right to dig a canal or to use a canal, in the absence of all evidence that any canal actually existed. We are discussing matters in existence in 1872. Surely, if any canal had ever been there, or had ever been contemplated, some one witness, at ■least, could be found who could testify to this fact. On the other hand, we have the affidavits of Ford, Ward, Sparkman, and Doar— men formerly acquainted with the Bluff and Newlands plantation— who swear that within their knowledge, extending over a period long anterior to the acquisition of the title by complainant, no canal in fact ■existed there, and none, so far as they knew, was contemplated. It does not appear that complainant has shown himself a riparian proprietor on Kinloch creek, or on its tributary, Bluff Back creek.
The complainant also contends that the act in question is invalid because none of the pre-existing conditions for its consideration by the General Assembly by sections 31 and 34, art. 3, of the Civil Code of South Carolina, had been fulfilled. Section 31 provides that no bill for the granting of any privilege or immunity, or for any private purpose whatever, shall be introduced or entertained in either House ■of the General Assembly, except by petition signed by the parties seeking the privilege, accompanied by a draft of a bill or joint resolution to carry out the purpose of the petition. Section 34 provides that the petition shall set forth fully and distinctly the merits and particulars of the case,, and, if it affects the rights of others, with proof that they, so far as known, have had 60 days’ notice of the presentation of
“The signing by the speaker of the House, and by the president of the Senate, in open session, of an enrolled bill, is an official attestation by the two Houses of Congress that such bill is one that has passed Congress. * * * And when a bill, thus attested, receives the approval of the President, and is deposited in the public archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable.”
And, commenting upon the question whether the journals of either House can be used to impeach a bill, the court says:
“The evils that may result from the recognition of the principle that an enrolled act in the custody of the Secretary of State, attested by the signatures of the presiding officers of the two Houses of Congress, and the approval of the President, is conclusive evidence that it was passed by Congress, according to the forms of the Constitution, would be far less than those that would certainly result from a rule making the validity of congressional enactments depend upon the manner in which the journals of the respective Houses are kept by the subordinate officers charged with the duty of keeping them.”
That case quotes the decisions of almost every state in the Union, showing a great diversity of opinion among them. As this is a matter within the control of the state, we must follow the decisions of the supreme court of South Carolina. They uniformly hold that, when the Constitution provides a special mode for the passage of an act, that mode must be observed, and that recourse can be had to the journals of the two Houses in order to discover if that mode has been followed. State v. Platt, 2 S. C. 150, 16 Am. Rep. 647; State v. Smalls, 11 S. C. 262; Bond Debt Cases, 12 S. C. 200; State v. Hagood, 13 S. C. 46. Although these cases rest upon constitutional requirements, still they proceed upon the doctrine that the courts can look behind the great seal, and examine the journals of the two Houses. In-the case at bar there was no constitutional requirement which has been violated. The provisions of an act of a preceding Legislature have not been followed in the matter of notice required by the act. Does this make this act invalid? The legislative power in South Carolina is vested in the General Assembly. The Constitution fixes the power of the General Assembly. Each General Assembly •possesses all these powers, and is subject to no limitation not found in the Constitution. One Legislature, therefore, cannot curtail or enlarge the power of any succeeding Legislature, unless, indeed, within
Another objection to this act is that it is a local and special law, and in conflict with section 34, art. 3, of the Constitution of the state. This section forbids local or special laws in 10 particulars not applying to this case, and adds: “In all other cases when a general law can be made applicable no special law shall be enacted.” The evils which this act we are now considering sought to remedy are peculiar and exceptional. As far as the case discloses, Kinloch creek runs through lands suitable for rice culture, and for that only. Consequently they are very low, easily flooded, subject to overflow by any abnormal tide or freshet. It is in close connection with Santee river. In that river, when any high tide is met by the descending stream, especially during a freshet, the water comes'up into Kinloch creek, and submerges all the circumjacent fields. Thus the crops sown there are constantly liable to overflow and destruction. To prevent this, a freshet bank had been constructed on the. adjacent plantations, one end resting on Santee river and passing over the lands of the defendants, which was intended to meet and counteract this influx of water. To make this freshet bank continuous and effectual, it must cross Kin-loch creek. No general law could meet the evil, because the conditions are exceptional. The act in question does not infringe this constitutional requirement.
With regard to the right of the Legislature to authorize the construction of this dam there seems but little question. As we have seen, Kinloch creek is not a navigable water of the United States, nor is it a navigable stream in the sense of a public highway. The right of the Legislature to authorize a dam in such a stream is shown in Gilman v. Philadelphia, 3 Wall. 713, 18 L. Ed. 96. This case cites and follows Willson v. Black Bird Creek Marsh Co., 2 Pet. 245, 7 L. Ed. 412. In that case the Legislature of Delaware had authorized the construction of a dam across Black Bird creek. This was one of those creeks passing through a deep, level marsh adjoining the Delaware, up which the tide flows for some distance. The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce this object, provided they do not come in collision with the powers of the general government, are undoubtedly within those reserved to the states. But the measure authorized
But this may be all correct, still does the act in question impair the obligation of a contract? In 1898 the complainant and F. W. Ford— Ford at that time being a proprietor of the plantation above this dam—feeling themselves injured by a dam which the defendants had constructed across Kinloch creek, desired its removal. They claimed that the existence of the dam was unlawful; that they had the right to require Kinloch creek to be kept open, and to remove the trunk, floodgate, and bank of the dam as obstacles to navigation, and for the free ingress and egress of the water in the creek. The defendants insisted upon their right to maintain the dam, and objected to its removal. The matter was placed in the hands of counsel representing each party, instructed to protect their interest. After considerable negotiations and correspondence, articles of agreement under seal were finally entered into, executed by Manigault and Ford on the one part and the defendants on the other. By these articles it was agreed that the dam should remain undisturbed until 31st December, 1898, and that from and after that date Manigault and Ford, their agents, servants, and employés, should have the right to open and keep open all or any part of the said banks and trunks over and across the said creek, and to remove all or any part of the banks and obstructions across the creek, so as entirely, or to such extent as they may see fit, to free and clear the creek from all or any part of such obstructions without any let, hindrance, objection, delay, or molestation whatsoever in act or procurance by the parties of the first part, their servants, agents, or employés. Pursuing the terms of this agreement, the obstructions were all removed from and after the 31st of December, 1898, and thenceforward no longer existed. The defendants deny the obligations of the contract, first, because it was without consideration; second, because it was made under duress; third, because it was with regard to a public matter concerning which the parties could not contract.
The contract was under seal, and this imports a consideration. Storm v. The United States, 94 U. S. 84, 24 L. Ed. 42. It contains mutual covenants, and they create considerations. Park Bros. & Co. v. Kelly, 49 Fed. 625, 1 C. C. A. 395. Nor can it be said to have been made under duress. Manigault and Ford made no threats of violence, nor did they make any move to abate the nuisance by their own act. They assert a legal right. The matter was placed in the hands of an attorney by them, whose age and experience forbid the idea of the adoption of any course not conservative and regular. He was referred by the defendants to a member of the bar of good stand
“As in a state of civil society property of a citizen or subject is subject totbe demands of the sovereign, so contracts must be understood as made in reference to the possible exercise of rightful authority of the government, and no obligation of a contract can extend to the defeat of legitimate government authority.”
So, also, in Mitchell v. Clark, 110 U. S. 633, 4 Sup. Ct. 312, 28 L.Ed. 279, where the question of the power of Congress arises, it does not depend upon the incidental effect of its exercise on contracts, but on the existence of the power itself. It is well to examine this contract more minutely, and ascertain precisely what it is. The defendants, without the authority of the state, in whom alone is the right to dose a stream in this creek, had built a dam. across Kinloch creek with a trunk and floodgate on each side thereof; the trunk and floodgate being on their own lands. The complainant and Mr. Ford objected. After notice of the objection and negotiations thereon, this contract was made. It is' an indenture between these defendants, parties of the first part, and Manigault and Ford, parties of the second part. It recites that all the parties to the deed were owners of land on the Santee river, adjacent to or in the neighborhood of Kin-loch creek and White Oak creek; that there are now—that is, at the date of the deed—banks across the said creeks, with a trunk on the bank across White Oak creek, and a bank across Kinloch creek with
“First. That from and after the 31st December, 1898, the said parties of the second part, Manigault and Ford, their agents, servants and employés, shall have the right to open and keep open all or any part of the said banks and trunks over and across the said two creeks, and to remove all or any part of the said banks and obstructions across the said creeks, so as entirely or to such extent as they may see fit, to free and clear both of said creeks, or either of them, from all or any part of such obstructions, without let, hindrance, objection, delay or molestation whatsoever, in act or proeurance, by the parties of the first part, their servants, agents or employés.”
Now, this contract speaks of the then existing claim of right by the complainant and Ford to the removal of the then existing obstruction, and of the covenant of the defendants to remove the same. They were put up by defendants under a claim of right in themselves to do this. This claim was abandoned, and the obstructions in due time were thoroughly removed, without any let, hindrance, objection, delay, or molestation by the parties of the first part whatsoever, or any of .their servants, agents, or employés. Has not this contract been performed? All that it binds the parties to do has been done. The obstruction has been entirely removed. Nothing is said of the future. But good faith requires that Ward & Co. should not, having entered into this contract, proceed to repeat what Manigault and Ford complained of. They would subject themselves to the same proceeding; perhaps be met at once with an indictment for a nuisance. But, having abandoned all claim in their own right to erect such a dam, it does not prevent them from using—indeed, from seeking a legal authority for the erection of—a dam. Their previous act being unlawful, they were exposed to a prosecution or for damages. Now, however, the state has come in, and by the exercise of her police power has sanctioned the obstruction of the dam. The actitin of the defendants is no longer urilawful. The state has made it lawful; and, under the authorities quoted above, if the contract forbid a renewal of the erection of the dam, this did not preclude or prevent or include the acts of the state.
This case has been heard and conclusions of fact reached upon •evidence introduced by affidavits, the most unsatisfactory mode of proof. A full hearing, accompanied by the examination and cross-examination of witnesses, may change or modify these conclusions. As at present advised, this court does not feel that it is a case which will justify exercise of the extraordinary powers of this court in granting an injunction. And it is so ordered.
8. See Contracts, vol. 11, Cent. Dig. § 437.