McMeekin v. Power Co. , 80 S.C. 512 ( 1908 )

July 13, 1908. The opinion of the Court was delivered by This is an application to the Court, in the exercise of its original jurisdiction, for an order enjoining the defendant from taking the land of the petitioner under condemnation proceedings to the extent of backing water upon it on the completion of the dam across Broad River, which the defendant contemplates building as the basis for constructing an electrical plant.

The facts will fully appear by reference to the petition and the return to the rule to show cause, which will be set out in the report of the case.

The first ground upon which the petitioner relies for an injunction is: that the dam will obstruct a navigable stream, in contravention of section 28, art. I, and section 1, art. XIV, of the Constitution of this State.

The obstruction of a navigable stream is a public nuisance and the remedy is by indictment, unless the person instituting proceedings on the civil side of the Court can show special or peculiar damages, differing in kind from those to which all others in common with him are exposed.Carey v. Brooks, 1 Hill, 365; State v. Rankin, 3 S.C. 438; Hellams v. Switzer, 24 S.C. 39; Steamboat Co. v. R.R. Co., 30 S.C. 539, 9 S.E., 650; Steamboat Co. v.R.R. Co., 46 S.C. 327, 24 S.E., 337; Baltzeger v. R.R.,54 S.C. 242, 32 S.E., 358. Thus showing that the obstruction of a navigable stream cannot be declared a public nuisance and abated at the instance of a private party in a civil action merely on the ground that it is a public nuisance, as contended by this petitioner; but that in such case indictment is the appropriate remedy.

The aid of the Court in the exercise of its chancery powers cannot, therefore, be invoked to restrain the defendant from doing an act which, if allowed to be completed, the petitioner would not have the right to demand should be declared to be illegal in a civil action.

The second ground set forth in the petition is that the said act is special legislation, in contravention of section 34, art. III, of the Constitution, and is not permissible under the proviso of section 2, art. IX, of the Constitution, which is as follows: "Provided, That the General Assembly may by a two-thirds vote of each house, on a concurrent resolution, allow a bill for a special charter to be introduced, and when so introduced, may pass the same as other bills."

The petitioner's attorneys have not discussed this ground, and we deem it only necessary to refer to the proviso to show that this ground can not be sustained.

The third ground upon which the appellant relies is: That the act permits the taking of private property, for private purposes, without the consent of the owner under condemnation proceedings, in contravention of so much of section 17, art. I, of the Constitution, as provides that private property shall not be taken for private use without this consent of the owner.

Section 5 of the act incorporating the defendant provides, "that the said power company shall, on demand, sell and furnish power to any person or corporation for manufacture or lighting purposes, upon such persons or corporations paying the usual rates or charges for same."

In Talbot v. Hudson, 16 Gray (Mass.), 417, the Court announced the following doctrine: "It has never been deemed essential that the entire community, or any considerable portion of it, should directly enjoy or participate in an improvement or enterprise in order to constitute a public use within the true meaning of these words as used in the Constitution. Such an interpretation would greatly narrow and cripple the authority of the Legislature so as to deprive it of the power of exerting a material and beneficial influence on the welfare and prosperity of the State. In a broad and comprehensive view, such as has been heretofore taken of the construction of this clause of the Declaration of Rights, everything which tends to enlarge the resource, increase the industrial energies and promote the productive power of any considerable number of the inhabitants of a section of the State, or which leads to the growth of towns and creation of new sources for the employment of private capital and labor, indirectly contributes to the general welfare and to the prosperity of the whole community. It is on this principle that many of the statutes of this commonwealth by which private property has heretofore been taken and appropriated to a supposed public use are founded. Such legislation has the sanction of precedents coeval with the origin and adoption of the Constitution, and the principle has been so often recognized and approved as legitimate and constitutional that it has become incorporated into our jurisprudence."

This language is quoted with approval in the case of Boyd v. Granite Co., 66 S.C. 433, 45 S.E., 10.

The petitioner's attorney contends "that the real purpose of the corporation was to generate and sell power for manufacturing purposes, or to use such power to operate its own manufacturing enterprise." They also say: "In the case at bar it will not do to say that the corporation is one for public uses, because of the provision in sec. 5 of its charter, that is. `shall on demand sell and furnish power to any person or corporation for manufacture or lighting purposes upon such person or corporation paying the usual rates or charges for same.' This provision was doubtless inserted for the purpose of giving color to the argument in behalf of its public purpose. But, as shown above, it is impossible with this kind of company to serve the public generally, or an indefinite number of persons, as the ability to serve is used and exhausted in serving a small limited number of individuals or enterprises."

The language of sec. 5 of the act plainly imposes upon the defendant a public duty, and the petitioner assumes that the defendant will not comply with the requirements of the statute. It would be prejudging the case to decide that question at this time.

It must also be borne in mind that it does not appear from the allegations of the petition that more land will be required if the electric power generated by the petitioner should be devoted exclusively to the use of the public than will be necessary in case it also supplies electric power to private persons.

Having reached the conclusion that the petitioner was incorporated for a public purpose, it is only necessary to cite the case of Manufacturing Co. v. Light and Water Co., 76 S.C. 95,56 S.E., 664, to show that the land can be taken under condemnation proceedings.

An order dismissing the petition has already been filed.