Defendants Brief — Columbia Water Power Co. v. Columbia Electric Street Railway Light & Power Co.

MOTION TO DISMISS OR TO AFFIRM

AND

BRIEF OF ARGUMENT FOR THE MOTION.

SUPREME GOURT OF THE UNTED STATES

OCTOBER TERM, 1896.

THE COLUMBIA WATER POWER COMPANY,

PLAINTIFF IN ERROR,

Versus

THE COLUMBIA ELECTRIC STREET RAILWAY,

LIGHT AND POWER COMPANY, DEFEND-

ANT IN ERROR.

In Error to the Supreme Court of the State of South Carolina,

at Columbia, S. C.

INDEX.

Motion to Dismiss or to Affirm..................... 3

re ech ced bina ea ee Ke de 0k b8b kOe 4

Supreme Court of the United States.

OCTOBER TERM, 1896.

No. 729.

The Columbia Water Power Company, Plaintiff in Error,

Against

The Columbia Electric Street Railway, Light and Power

Company, Defendant in Error.

Now comes the Defendant in Error, by its Counsel appear-

ing in that behalf, and moves the Court to dismiss the Writ of

Error in the above entitled cause for want of jurisdiction,

because the judgment brought up on said Writ of Error is the

judgment of the Supreme Court of the State of South Caro-

lina, sitting at Columbia, S. C., and it appears that no Federal

question was involved in said judgment and the decision of

said cause.

And the said Defendant in Error, by Counsel as aforesaid,

also moves the Court to affirm the judgment brought up by

said Writ of Error, because, although the record of said cause

may show that this Court has jurisdiction in the premises, it

is manifest that said question involved was frivolous, and

that said Writ of Error was sued out for delay only.

JOHN T. SLOAN,

WM. H. LYLES,

Counsel for Defendant in Error for the Purposes of These

Motions Only.

‘

Supreme Court of the United States.

OCTOBER TERM, 1896.

The Columbia Water Power Company, Plaintiff in Error,

Against

The Columbia Electric Street Railway, Light and Power

Company, Defendant in Error.

To Leroy F. Youmans, Esq., Attorney for Plaintiff in Error:

Please take notice that on Monday, the 3rd day of May, A.

1D. 1897, at the opening of the Court, or as soon thereafter

as Counsel can be heard, the motions, of which the forego-

ing are copies, will be submitted to the Supreme Court of the

United States for the decision of said Court thereon. An-

nexed hereto is a copy of the brief of Argument to be submit-

ted with said motions in support thereof.

JOHN T. SLOAN,

WM. H. LYLES,

Counsel for Defendant in Error for the Purposes of These

Motions Only.

ABSTRACT OF CASE.

Prior to the 24th day of December, 1887, the State of South

Carolina was the owner of the Columbia Canal and its appur-

tenances, which was in the custody of the Board of Directors

of the South Carolina Penitentiary, in process of development.

By an Act of the General Assembly approved on that day,

19 Stats., page 1,090, entitled “An Act to Incorporate the

Board of Trustees of the Columbia Canal, to Transfer to the

Said Board the Columbia Canal with the Lands now Held

Therewith and Its Appurtenances and to Develop the Same,”

it was provided:

“Section 1. Be it enacted by the Senate and House of Rep-

resentatives of the State of South Carolina, now met and sit-

ting in General Assembly, and by the authority of the same,

That the Board of Directors of the South Carolina Peniten-

tiary are hereby authorized, empowered and required to trans-

fer, assign and release to the Board of Trustees of the Colum-

bia Canal, hereinafter created and provided for the property

known as the Columbia Canal, together with the lands now

held therewith, acquired under the Acts of the General As-

sembly of this State with reference thereto or otherwise, all

and singular the rights, members and appurtenances thereto

belonging; and upon such transfer, assignment and release

all the right, title and interest of the State of South Carolina

in and to the said Columbia Canal and the lands now held

therewith, from its source at Bull’s Sluice through its whole

length to the point where it empties into the Congaree River,

together with all the appurtenances thereunto belonging, shall

vest in the said Board of Trustees for the use and benefit of the

city of Columbia, for the purposes hereinafter in this Act men-

tioned, subject, nevertheless, to the performance of the con-

ditions and limitations herein prescribed on the part of the

6

said Board of Trustees and their assigns: Provided, That

should the said canal not be completed to Gervais street within

seven years from the passage of this Act all the rights, powers

and privileges guaranteed by this Act shall cease, and the said

property shall revert to the State.”

> ti *K * K * * * * *

“Section 7. That the Board of Trustees shall, within two

years from the ratification of this Act, complete the said canal

so as to carry a body of water 150 feet wide at the top, 110

feet wide at the bottom and 10 feet deep, from the source of

the canal down to Gervais street, and furnish to the State,

free of charge, on the line of the canal, 500 horse power of

water power, to Sullivan Fenner or assigns 500 horse power

of water power, under his contract with the Canal Commis-

sion, and to furnish the city of Columbia 500 horse power

of water power at any point between the source of the canal

and Gervais street the city may select; and shall, as soon as

is practicable, complete the canal down to the Congaree River

a few yards above the mouth of Rocky Branch: Provided,

That the right of the State to the free use of the said 500 horse

power shall be absolute, and any mortgage, assignment or

other transfer of the said canal by the said Board of Trustees

or their assigns shall always be subject to this right.”

* K * + * * ok * * *

“Section 21. The said Board of Trustees shall be, and is

hereby, declared a body politic and corporate. Its corporate

name shall be ‘Board of Trustees of the Columbia Canal.’

Its officers shall be a Chairman and a Secretary and Treas-

urer. It shall have a corporate seal; may make and enforce

its by-laws for its government; may purchase, sell or lease

lands adjoining the caral useful for the purposes of the canal;

may sell or lease the water power of the canal, subject to

7

such rules and regulations as it shall prescribe, having first

provided for the State with 500 horse power of water power

at the Penitentiary, and 500 horse power of water power for

Sullivan Fenner or his assigns, and 500 horse power of water

power for the city of Columbia; may sue and be sued, plead

or be impleaded, under their corporate name, and exercise

such other powers as are hereinbefore granted, and shall fix

such compensation for the services of the Secretary and Treas-

urer as they may deem proper.”

Section 23 of this Act was amended by an Act of the Gen-

eral Assembly approved the 24th day of December, 1890, 20

Stats., page 967, entitled “An Act to Amend an Act

Entitled ‘An Act to Incorporate the Board of Trustees of the

Columbia Canal, to Transfer to the Said Board the Columbia

Canal, with the Lands Now Held Therewith and Its Appur-

tenances, and to Develop the Same,’ Approved December

24th, 1887,” so as to read as follows, to wit:

“Section 23. That the said Board of Trustees, as soon as

they have fully developed the said canal and secured the pay-

ment of the debts contracted by them in its development, they

shall turn over the canal, with all its appurtenances, to the

city of Columbia. But the said Board of Trustees shall have

full power and authority, before the said canal has been fully

developed and completed and turned over to the city of Co-

lumbia, to sell, alienate and transfer the same and all its ap-

purtenances, the lands held therewith, and all the rights and

franchises conferred by this Act on said Board of Trustees, to

any person or corporation, subject, however, to all the duties

and liabilities imposed thereby, and subject to all contracts,

liabilities and obligations made and entered into by said board

prior to such sale and transfer, upon the approval and consent

of nine members of the City Council of the city of Columbia;

and before such sale, alienation and transfer is made, thirty

8

days’ notice of the offer to purchase and the terms thereof

shall be given to the Council of the city of Columbia.”

On the 11th day of January, 1892, the Board of Trustees so

created by the aforesaid Act, pursuant to its provisions, con-

veyed the canal and its appurtenances to the Plaintiff in Error.

On the 26th day of May, 1892, the Board of Directors of the

South Carolina Penitentiary entered into a contract with De-

fendant in Error which contained the following provisions,

to wit:

‘Whereas, at a regular meeting of the Board of Directors

of the South Carolina Penitentiary, held in the city of Colum-

bia on the 17th day of May, A. D. 1892, the following resolu-

tion was unanimously adopted, to wit:

‘““*Whereas, under the Acts of General Assembly providing

for the transfer of the Columbia Canal to the Board of Trus-

tees, and authorizing the sale thereof by said Board of Trus-

tees, there was reserved for the State of South Carolina,

for the use of the South Carolina Penitentiary, 500 horse

power on the line of the said canal; and whereas, to utilize

said water power and make the same available for the pur-

poses of the Penitentiary, it would require the expenditure of

a large sum ot money, which has not been provided for; and

“Whereas, the Columbia Electric Street Railway, Light

and Power Company, in consideration of the privileges, uses

and enjoyments hereinafter expressed, has offered to develop

the same for the Penitentiary, and the said proposition is

deemed greatly to the advantage of the State of South Caro-

lina, and also of the Penitentiary; now, therefore, be it re-

’ 99

solved—

* * * *« * a * * * *

“Now, therefore, know all men by these presents:

“First. That the said the Columbia Electric Street Railway,

Light and Power Company, party of the second part, in con-

9

sideration of the premises, and in consideration of the rights,

privileges and immunities hereinafter set forth, covenants and

agrees, at its own cost and expense, to build, erect and com-

plete on the western bank of the Columbia Canal, opposite

the South Carolina Penitentiary, at or near the point where

the water wheel of the South Carolina Penitentiary formerly

stood, all necessary bulk-heads, water-ways, water-gates, tail-

races, mason work and buildings, and to erect suitable water

wheels thereon of the most modern and improved patterns,

of sufficient capacity to utilize and develop the said 500 horse

power of water power; the said work to be completed and

ready for use within twelve months after the execution of this

contract; and the said party of the second part further cove-

nants and agrees, at its own cost and expense, to maintain

and operate the said water wheels for the development and

utilization of the said 500 horse power of water power for and

during the continuation of this contract. And the said party

of the second part further covenants and agrees to transmit

across the said Columbia Canal, to some convenient point

within the walls of the said Penitentiary, to be indicated by

the superintendent thereof, so many horse power, not to ex-

ceed the sum of 100 horse power, for the use and benefit of

the said South Carolina Penitentiary; the said power to be

delivered, when required by the party of the first part, at the

point above indicatcd, from electric generators, or in such

other form as the party of the second part may elect.”

* *" * * * * * * *

“Second. That the said party of the first part, on behalf of

the Board of Directors of the South Carolina Penitentiary,

covenants and agrees to allow to the said party of the second

part, for the purpose of the development of the said water

power, the use and enjoyment of all the right, title and inter-

est that the State of South Carolina and the Board of Direc-

tors of the South Carolina Penitentiary, by reason of the Acts

10

of the Legislature hereinbefore referred to, have in and to all

the land on the west side of the Columbia Canal, between the

said canal and the river opposite the walls of the said Peni-

tentiary, for and during the term of this contract. And the

said party: of the first part further covenants and agrees with

the party of the second part, that the right, title and interest

so conveyed is sufficient for the erection of the said bulk-

heads, water-ways, water-gates, tail-races and buildings; and

further agrees to allow to the said party of the second part,

to be used in the erection of the said work, all the stone ma-

sonry and other material now on the said land, together with

the privilege of quarrying and using such other stone, earth

and other material as may be necessary for the erection and

proper execution of said work; and the party of the first part

further covenants and agrees that the said party of the second

part shall have, for and during the continuation of this con-

tract, the free and uninterrupted use and enjoyment of the

right of way along the banks of the said canal to and from

Gervais street to the works so to be erected. And the party

of the first part, in consideration of the covenants and agree-

ments by and on the part of the party of the second part,

hereby further covenants and agrees to allow the said party of

the second part the free and uninterrupted use of the said 500

horse power of water power so reserved by the State of South

Carolina for the use of the South Carolina Penitentiary, saving

and excepting the 100 horse power of water power so re-

served for the use of the Penitentiary, as hereinbefore stated.

“Third. And the said party of the second part, in considera-

tion of the premises, and further in consideration of the use of

the said 500 horse power of water power, hereby covenants

and agrees to pay to the said party of the first part the sum

of $2,500 per annum for each and every vear during the con-

tinuation of this contract, commencing when said work shall

have been completed anc.ready for use, less a deduction of $5

II

per horse power for each and every horse power transmitted

in the manner and the form aforesaid by the party of the

second part for the use of the party of the first part—the said

payments to be made in monthly instalments and payable at

the end of each and every month.

“Fourth. And it is mutually agreed by and between the par-

ties hereto that this contract shall continue and be of force

for and during the period of thirty years from the date of the

execution of the contract; provided, however, that at the ex-

piration of said period this contract may be continued upon

such terms as may be mutually agreed upon by and between

the parties thereto; and in the event that the said contract be

not continued, the said party of the second part shall have the

right, within six months after the expiration of said contract,

to remove the water wheel and all other machinery by the said

party of the second part furnished and erected under the terms

of this contract; leaving, however, for the use of the said

Penitentiary all mason work, bulk-heads; water-ways, tail-

races and buildings which shall have been erected.”

By an Act of the General Assembly approved December

24th, 1892, 21 Stats., page 94, entitled “An Act to Ratify and

Confirm the Contract Made and Entered Into by and Between

the Board of Directors of the South Carolina Penitentiary

and the Columbia Electric Street Railway, Light and Power

Company for the Development of the Five Hundred Horse

Power of Water Power Reserved by the State of South Caro-

lina for the Use of the South Carolina Penitentiary, Along the

Line of the Columbia Canal,” it was enacted:

“Whereas, at a regular meeting of the Board of Directors

of the South Carolina Penitentiary, held in the city of Colum-

bia on the 17th day of May, A. D. 1892, a resolution was

unanimously adopted authorizing and instructing the Super-

intendent of the South Carolina Penitentiary, on behalf of the

said Board, to enter into a contract with the Columbia Elec-

12

tric Street Railway, Light and Power Company for the devel-

opment and utilization of the 500 horse power of water power

reserved by ‘the State of South Carolina for the use of the

South Carolina Penitentiary, along the line of the Columbia

Canal; and, whereas, the Superintendent of the South Carolina

Penitentiary, pursuant to the said resolution of the said Board,

did, on the 26th day of May, A. D. 1892, execute a contract

with the said the Columbia Electric Street Railway, Light

and Power Company, for the development and _ utliization of

the said water power upon certain terms expressed in the said

contract; and, whereas, the said the Columbia Electric Street

Railway, Light and Power Company, pursuant to the said

contract, ras erected extensive mason work, and has placed

thereon water wheels for the development of the said 500

horse power of water power, and erected thereon all necessary

buildings, shafting etc., with all necessary water wheels, gate-

ways and other structure for the complete development and

use of the said water power, and has in all other respects fully

complied with the terms of the said contract; now, therefore,

“Section 1. Be it enacted by the Senate and House of Rep-

resentatives of the State of South Carolina, mow met and sit-

ting in General Assembly, and by the authority of the same,

That the said contract by and between the Board of Directors

of the South Carolina Penitentiary, and the Columbia Electric

Street Railway, Light and Power Company, for the develop-

ment of the said water power, be, and the same is hereby,

ratified and confirmed, subject, however, to all of the condi-

tions, limitations and restrictions in the said contract pro-

vided.”

This action was duly commenced by the Plaintiff in Error

against the Defendant in Error in the Court of Common Pleas

for the County of Richland and State of South Carolina, the

Complaint alleging the aforesaid Statutes, Deed and Contract,

and concluding w:th the prayer for an injunction, etc.

13

The Defendant in Error filed its Answer, which contained

the following amongst other matters:

“III. It denies that the 500 horse power of water required

to be furnished to the State of South Carolina was provided

solely for the purpose of use by the State itself in its public

institutions, and denies that it was not intended or provided

for any use that the State of South Carolina might choose to

put the same to. On the contrary, it alleges that by an Act of

the General Assembly, referred to in said complaint as consti-

tuting the Board of Trustees of the Columbia Canal, it was

expressly provided that said board should ‘furnish to the State,

free of charge, on the line of the canal, 500 horse power of

water power: Provided, That the right of the State to the

free use of the said 500 horse power shall be absolute, and

any mortgage, assignment or other transfer of said canal by

the Board of Trustees, or their assigns, shall always be sub-

ject to this right.’”

The cause came on to be tried, and resulted in the following

Decree:

“This cause came on to be heard before me at the present

term of the Court, and has been fully argued.

“As to the question raised that the Court has no jurisdiction

because that the State is an indispensable party, this plea is

overruled. The Court has jurisdiction. The defendant is a

lessee of the water power reserved by the State, and the Court

can construe a contract made between the defendant and the

State, whereby it is claimed that the rights of the plaintiff

have been affected. The door is not shut to plaintiff because

of the contract with the State; the State has a right to come

in if she so wishes; but she declares that she will not come in,

and the cause can be heard without her presence.

“As to the Rawls deed, that deed conveys the property to

the State; but subsequently the State conveyed the canal prop-

erty to the plaintiff, and thereby conveyed in fee all of the

14

property known as the ‘canal property,’ including its banks, as

it existed at the time of the conveyance; and at the time of

the Act of 1887, and of the conveyance made thereunder, the

canal property covered the land upon which the defendant's

works are erected.

“Plaintiff acquired its rights under the Act of 1887. It is

not the grantor of anything to the State, but the State has

reserved out of its grant 500 horse power of water power, and

that much plaintiff did not purchase. The whole question

turns on the reserved right of the State. The defendant holds

a lease from the State, and the contract made by defendant

with the Board of Directors of the State Penitentiary, ap-

proved and ratified by the State, has given to the defendant

all of the rights which the State had in that 500 horse power.

In the Act of 1887 there is a distinct reservation of an absolute

right to the State of 500 horse power of water power. Call it

an easement, or what you will, it is absolute. Now, can the

State dispose of it? Unquestionably she can. She can de-

velop it; she can erect the necessary buildings for its utiliza-

tion, and can utilize it. She may do it in any way she pleases.

She may use old wheels, or she may use new and improved

methods, and may resort to electricity, which is now generally

regarded gs an improved method of transmitting water power;

therefore, there is no objection to the electric plant erected by

the defendant under its contract with the State.

“Now, can the State lease its power, and permit the lessee

to use it, and supply the State at the cost of the lessee? I

think it can. The State is not always ready for carrying on

such work; therefore, she could lease it; and, in this particular

case, the State gets, or may get, 100 horse power and the les-

see the balance. This being a consideration moving to the

lessee, the lessee can devote that consideration to its own use;

therefore, under the Act, the defendant, as lessee of the State,

has the unquestionable right to put the electric plant on the

15

banks of the canal of the Penitentiary and to carry out the

contract which has been made between it and the State of

South Carolina.

“Now, has the defendant the supplementary right to put in

a steam plant? Prudence and foresight justifies its erection

on the banks of a canal along a river where freshets come; and

where time is important, there might be serious interruption

to the industries of the defendant company, and thus of the

Penitentiary; therefore, the defendant has a right to use so

much steam plant as is necessary to supplement its water

power at such times as the water power is unavailable by

reason of freshets or necessary repairs to the canal, or other

causes. The dam may break, rains may swell the river, and

there might be a long interruption to the use of the water

power, and it would be necessary to resort to the steam plant

to carry on the work. It is common to use steam as an ad-

junct to water power plants. The defendant cannot erect any

more steam plant than is necessary for it to use as a supple-

ment to the water power which it has received from the State.

“I, therefore, hold that there has been no violation of the

State’s contract with the plaintiff. That reservation of the

State’s water power is a part of the contract made with the

plaintiff, and that reservation is absolute. Therefore, I hold

that the complaint must be dismissed.

“It is, therefore, ordered and adjudged that the complaint

be dismissed. J. H. HUDSON,

“November 11, 1893. Presiding Judge.”

An appeal from this Decree was duly taken to the Supreme

Court, the Court of last resort in the State of South Carolina,

where the judgment of the Court below was affirmed, in an

opinion containing the following language, to wit:

“Having reached the conclusion that the State is not an in-

dispensable party in determining this cause of action, the next

question for consideration is, whether or not the contract be-

16

tween the State and the defendant, relative to the 500 horse

power of water power, is null and void. This contract re-

ceived legislative construction when it was ratified by the Act

of the Legislature hereinbefore mentioned, and although such

construction is not binding on this Court, still it shows the

intention of the State when it reserved the 500 horse power

of water power. We think the construction placed upon said

contract in 1892 by the Legislature as to the 500 horse power

reserved to the State, was in harmony with the terms of said

contract—the proviso to section 7 of the Act of 1887 being

that the right of the State to the free use of the said 500 horse

power should be absolute. The use of the word ‘absolute’

was for the purpose of creating a right in the State to this

500 horse power, separable and distinct from ownership in

other lands, and not dependent upon any particular lands

to which it may be appurtenant. This reservation was a right

of profit a prendre.”

The opinion then quotes at length from the language of

Campbell, Chief Justice, in Hall vs. City of Ionia, 38 Mich.,

423, and of Foster, J., in Goodrich vs. Burbank, 12 Allen, 459,

and proceeds:

“The following authorities will also throw light upon this

subject: Tinicum Fishing Co. vs. Carter, 61 Penn. St., 39;

19 Am. & Eng. Enc. Law, 259; Gould on Waters, section 299,

p. 562; Poull vs. Mockley, 33 Wisc., 482; Washburn’s Ease-

ments & Servitudes, sections 12, 12a; Angell on Water-

courses, section 143. We are of opinion that the contract be-

tween the State and the defendant was not null and void.

“It is contended that said contract did not confer upon the

defendant the right to erect the steam plant. This depended

upon the fact whether it was merely incidental to, and essen-

tial to, the enjoyment of the use of the water power plant.

The parties of the action had the right of trial by jury as to

the legal issues raised by the pleadings, but neither a demand

17

was made therefor on Circuit, nor is there an exception rais-

ing such question. This Court must assume that the Circuit

Judge properly decided all questions of fact upon which his

judgment had necessarily to rest. Even if there was error on

his part in his findings of fact, it is not the subject of review by

this Court in a law case. This Court, therefore, cannot re-

view the testimony for the purpose of determining whether

or not the steam plant was merely incidental to the water

power plant, and essential to the enjoyment of its use. For

the same reason we cannot review his Honor’s finding of fact,

in effect, that the plaintiff is owner in fee of the land described

in the complaint, subject to the right of the State to the 500

horse power of water power.

“These views render it unnecessary to decide specifically

the other exceptions herein.

“It is the judgment of this Court, that, for the reasons

herein set forth, the judgment of the Circuit Court be af-

firmed.”

See 43 S. C., 169.

The Plaintiff in Error bases its assignment of Errors upon a

single ground, as follows, to wit:

“That error was committed in deciding in favor of the val-

idity of the contract between the defendant and the Board of

Directors of the South Carolina Penitentiary, May 26, 1892,

and the Act of the General Assembly of the State of South

Carolina, December 24, 1892, ratifying and confirming the

same, which were drawn in question, on the ground of their

being repugnant to the Constitution of the United States of

America in this, that they impaired the obligation of the con-

tract made with the State of South Carolina, December 24,

1887, as to the rights, franchises and privileges of the plain-

tiff as the owner in fee of the property known as ‘The Colum-

bia Canal,’ and more especially as to the plaintiff's sole and

exclusive right, franchise and privilege to sell and lease the

18

water power developed by said canal, and as to the 500 horse

power of water power to be furnished to the said State, and

in this that they deprived the plaintiff of its property without

due process of law.”

.

GROUNDS OF MOTION.

5.

Defendant in Error submits that the judgment of the Su-

preme Court of the State of South Carolina, based upon a

construction of the Act of 1887, under which both parties

claim involved no Federal question and that this Court has

no jurisdiction of the cause.

II.

Defendant in Error also submits that although the record

may show that this Court has jurisdiction, it is manifest that

the Writ of Error was sued out for delay only, and that the

question on which the jurisdiction depends is so frivolous as

not to need further argument.

ARGUMENT.

It is settled beyond controversy by an unbroken line of de-

cisions of this Court that “if it appear either that the decision

of the State Court was made upon rules of general jurispru-

dence, or that the case was disposed of upon other grounds

broad enough in themselves to sustain the judgment without

considering the Federal question, ard that such question was

not necessarily involved, the jurisdiction of this Court will not

attach.” City of New Orleans vs. New Orleans Water Works

Co., 142 U. S., 79. And in the same case it was ruled that

“Before this Court can be asked to determine whether a stat-

ute has impaired the obligation of a contract, it should appear

that there was a legal contract subject to impairment.” See

19

also Hammond et al. vs. Johnston, Rec., 142, U. S., 73, and

Beaupre vs. Noyes, 138 U. S. 397.

Testing the case at bar by this rule, what do we find?

That the Supreme Court of South Carolina did not pass

upon the Act of 1892, under which the Federal question is

sought to be raised, at all, but based its decision

solely upon the Act of 1887, under which both parties

claimed. It held that when the Legislature by section 7 of

that Act provided that the Trustees should “furnish to the

State, free of charge, on the line of the canal, 500 horse power

of water power. * * * Provided, the right of the State

to free use of said 500 horse power shall be absolute, and any

mortgage, assignment or other transfer of the said canal by

the Board of Trustees, or their assigns, shall always be subject

to this right,” it meant that the right should be absolute, and

that the Board of Trustees could never transfer any interest

in the canal which would prevent the State from disposing of

that reserved right as it saw fit; and, of course, the Plaintiff in

Error, in its purchase from the Board of Trustees, can show

no contract or right as to the 500 horse power so reserved

entitled to the protection of the Federal Constitution. So far

from the Court basing its decision upon the Act of 1892, that

Act was only incidentally mentioned, and the Court clearly

indicated that it did not consider that it had any effect upon

any right which the Plaintiff in Error had at the time of its

passage.

JOHN T. SLOAN,

WM. H. LYLES,

Counsel for Defendant in Error.

(16,508. )

SUPREME GOURT Ot Tit UNITED STATES

OCTOBER TERM, 1897.

No. 317.

THE COLUMBIA WATER POWER COMPANY,

Plaintiff in Error,

VS.

THE COLUMBIA ELECTRIC STREET RAILWAY,

LIGHT AND POWER COMPANY,

Defendant in Error.

In Error to the Supreme Court of the State of South

Carolina.

INDEX.

PAGE

RDO GE NAG. kr reac iee wsy PN Oren

APPOMAOG os Sa

ABSTRACT OF CASE.

The questions involved in this case are two:

1. Whether the defendant in error had the right to erect a

steam plant on or near the banks of the Columbia canal as a

necessary adjunct to a water power plant there erected by it.

2. Whether it has the right to make use of 500 horse power

of water power reserved by the State of South Carolina and

developed by the defendant corporation under a contract with

the State.

The following are the facts:

The plaintiff in error relies upon the act of 1887, but it al-

leges in its complaint that it recognized and admitted the right

of the State to the use of the 500 horse power of water power

for the purposes of the penitentiary, and the right of the de-

fendant to erect the works in question so far as they were in-

tended to develop the water power itself. The only questions,

then, which presented themselves upon the merits of the case

for consideration in the courts below are those stated above.

The works erected by the defendant as a power station are

located on the north side of Blanding street in the city of

Columbia, between the canal and Congaree river, opposite the

wall around the penitentiary grounds, upon land originally pur-

chased from Thomas J. Rawls by the State of South Carolina,

October 18th, 1866, for the use of the penitentiary. This land

is within the boundaries described in the Act of the General

Assembly of the State of South Carolina, approved February

Sth, 1882, 17 Stats., 873, as “All that tract of land measuring

and containing about forty-five acres, and lying between the

canal and the Congaree river, and between Neagle’s bridge and

Broad River bridge, together with certain small islands adjacent

thereto.” The State had previously acquired from Elisha Dan-

iels, a former owner of the Rawls land, for the purposes of the

Columbia canal, a strip of land forty feet wide measured each

way from the centre line of the canal as it then existed, through

the land afterwards conveyed by Rawls to the State, but this

4 Columbia Water Power Company vs.

strip did not touch the site of the works in question, the subse-

quent widening of the canal having taken up more than the

original eighty feet. The works, however, did touch the outer

side of the bank of the widened canal, near where the machine

shops and grist mill of the penitentiary stood upon the banks

of the old*canal. The balance of the forty-five acres described

in the act of 1882 was acquired by the State of South Carolina

in connection with the Columbia canal under the Sullivan

Fenner contract and deeds from other parties. One or two

sales or contracts for sale of the Columbia canal had been made

by the State of South Carolina, but the property had been re-

conveyed and on the 24th day of December, 1887, the State of

South Carolina was the owner of the canal and its appurte-

nances, and it was then, and had been since 1882, in the custody

of the board of directors of the South Carolina penitentiary

for purposes of development, work having proceeded continu-

ously from 1882 up to that date by convict labor and appropria-

tions from the State Treasury. By an Act of the General

Assembly, approved on that date, 19 Stats., 1090, entitled “An

Act to incorporate the board of trustees of the Columbia canal,

to transfer to said board the Columbia canal with the lands

now held therewith, and its appurtenances, and to develop the

same,” the canal was transferred to the board of trustees

thereby created. And by an Act approved December 24th,

1890, 20 Stats., page $67, the board of trustees were authorized

to sell the property, subject to certain limitations and condi-

tions. On the 11th of January, 1892, the board of trustees so

created by the aforesaid Act, pursuant to its provisions, con-

veyed the canal and its appurcenances to the plaintiff in error.

On the 26th day of May, 1892, the board of directors of the

South Carolina penitentiary entered into a contract with the

defendant in error, under which the works referred to were

erected. Abstracts of these Acts of the General Assembly and

the contract with defendant corporation are fully set forth in

the “Abstract of Case” in the brief of argument for the de-

Columbia Electric St. Railway, Light and Power Co. 5

fendant in error on the motion in this cause to dismiss the writ

of error or aflirm the judgment of the court below. .That mo-

tion, under the order of the court, is to be heard in connection

with this argument, and reference is craved to the abstract of the

case there given.

ARGUMENT.

The two questions which are stated in the beginning of the

“Abstract of Case” will now be considered:

I.

Did defendant have the right to place its steam plant

where it is as an adjunct to its water wheels? This inquiry

again divides itself into two heads:

A. Did the plaintiff in error acquire title in fee to the land

in question by the conveyance of the canal?

3. If so, did not the reserved right of the State, conceded by

the plaintiff in its complaint, to erect the water station carry

with it the right to erect the steam plant as a necessary adjunct?

A.

We submit that the plaintiff did not acquire title in fee to

the lands in question.

It will be observed that in the decree of the State Circuit

court the judge held: “As to the Rawls deed, that deed con-

veys the property to the State; but subsequently the State con-

veyed the canal property to the plaintiff, and thereby conveyed

in fee all the property known as the canal property, including

its banks as it existed at the time of the conveyance and at the

time of the Act of 1887 and of the conveyances made there-

under. The canal property covered the land upon which de-

fendant’s works are erected.” But defendant in error, who was

respondent in the State supreme court, gave notice under the

rules governing the practice in those courts, that it would in

6 Columbia Water Power Company vs.

the supreme court urge the error in that regard as an additional

ground why the order of the circuit court dismissing the com-

plaint should be affirmed.

In the opinion of the Supreme Court, delivered by Associate

Justice Gary, it is said: “Even if there was error on his part

in his findings of fact, it is not the subject of review by this

court in a law case. The court, therefore, cannot review the

testimony for the purpose of determining whether or not the

steam plant was merely incidental to the water power plant, and

essential to the enjoyment of its use. For the same reason we

cannot review his Honor’s findings of fact that the plaintiff is

owner in fee of the land described in the complaint, subject to

the right of the State to the five hundred horse power of water

power.” But the chief justice of that court concurred in the

result in ‘the following words: “I concur in the result, as I am

not satisfied that the plaintiff ever acquired title to the land

upon which the works in question have been erected, for this

does not depend solely upon the solution of a question of fact,

as seems to be supposed.” And the other associate justice,

Pope, simply concurred in the result. ‘

Counsel for the plaintiff in error, in his argument against the

motion to dismiss or affirm, has taken the ground, and will

doubtless again take it in his argument on the main issues, that

this court is precluded from the consideration of this question

by the decision of the State Supreme court upon the matter.

We respectfully submit that it is not.

The writ of error has been sued out from this court to the

State court to bring the enfire record before the court for a full

review as to questions of law, not only of the judgment of the

State Supreme court, but also the judgment of the Circuit court.

The writ has been granted upon the allegation that the con-

tractural relation exists between the State of South Carolina and

the plaintiff in error under the Act of 1887, and this court is

called upon to determine whether a contract does exist under

that act, what its terms are, and whether it has been violated

-

Columbia Electric St. Railway, Light and Power Co. 7

by any subsequent Acts of the State Legislature. There-

fore, this court is compelled to determine what rights

the plaintiff in error did acquire under the Act of 1887? and

amongst other questions whether it acquired title in fee to the

lands lying between the canal and the river, or whether in the

purchase of the canal it acquired simply an easement of the lands

covered by the canal and its banks.

In the. case of Hagan vs. Hart, 165 U. S., 188, this court

ruled, as it had done in many other cases, “that on error to a

State court, this court cannot re-examine the evidence, and

when the facts are found below, is precluded by such findings.”

It is quite evident that Justice Gary of the State Supreme

court conceived the question of the character of plaintiff's title -

to be one of fact, while Chief Justice McIver conceived it to be

one of law, and we think a fair ference is that Justice Pope

was of the same opinion. If a question of fact, this court is pre-

cluded from its consideration, but it is not precluded by even a

unanimous opinion of the State Supreme court that it was a

question of fact and not one of law. We submit, there being

no dispute as to location or boundaries, and it being a question

solely to be determined by public acts of the State Legislature,

it is one of law, and not of fact. The only finding of fact in

the Circuit court decree was that the works are located on the

land covered by the Rawls deed; the Rawls deed called for the

Congaree river as its western boundary, consequently running

ad medium filum aquae, and it will be found from an examina-

tion of the Acts of the Legislature upon the subject that it was

not intended that any lands in the neighborhood in question

should pass with the canal, even if originally aequired for the

purposes thereof.

The Columbia canal and its appurtenances was first sold by

the State under the Act approved September 21st, 1868, 14

Stats., page 83; but the provisions of that Act are not important

for consideration at this time, as the State re-acquired the pos-

session of the canal in 1878, under a contract made with Sullivan

¥ ap

q

p:

SRST A ee MSLE

8 Columbia Water Power Company vs.

Fenner by commissioners appointed pursuant to the provisions

of the A. A., approved March 12th, 1878, 16 Stats., 444.

“THE STATE OF SOUTH CAROLINA.

This agreement between the Columbia Canal Commission, ap-

pointed in accordance with the provisions of the Act of the

General Assembly, No. 412, approved March 12, 1878, of the

first part, and Sullivan Fenner, as assignee and grantee of the

Columbia Water Power Company, of the second part, witnesseth,

that the said commission, for itself, and Sullivan Fenner, for

himself, his heirs, executors, administrators and assigns, do

hereby mutually covenant and agree:

1. The said Sullivan Fenner to give immediate possession of

the Columbia canal, with its appurtenances and the Lynch

property adjacent thereto.

The water power of the canal now used in supplying the city

of Columbia with water not to be interfered with by the com-

mission, except that the said water may be temporarily inter-

fered with when it is deemed necessary in the development of

the canal, in the opinion of the engineer in charge, approved

by the commission, and after five days’ notice to the corporate

authorities of the city of Columbia.

2. The said Sullivan Fenner covenants to execute a warranty

title to the State of the aforesaid Lynch property, and, if de-

sired, also to execute a quit claim deed to the said canal and its

appurtenances, on being furnished, subject to the terms of the

aforesaid Act, with five hundred horse power of water power at

Gervais street, for the use of himself, his heirs, executors and

assigns.

3. The said Sullivan Fenner to be furnished, for the use of

himself, his heirs, executors and assigns, with water power

(when developed) at his sites below Gervais street, upon the

same terms with other parties, with the right to use the canal

and banks adjacent to said sites for purposes connected wifh

the use of the water power furnished and manufacturing pur-

Columbia Electric St. Railway, Light and Power Co. 9

poses at said sites, and with authority, if desired, to widen at his

own expense the canal eastward below Gervais street opposite

said sites.

In witness whereof, the said commission, by the chairman,

under his private seal, attested by the secretary of the said com-

mission, and the said Sullivan Fenner, under his seal, have

hereto set and subscribed their names at Columbia, South Caro-

lina, this 25th day of September, A. D. 1878.

THE CANAL COMMISSION,

Per R. L. McCaughrin, Chairman, (L. 8.)

SULLIVAN FENNER, (L. 8.)

Per 8. W. Pearce, Jr., Attorney in Fact.

Attest: John C. Haskell, Secretary.

Signed, sealed and mutually delivered in duplicate before us.

(Signed.) JAMES T. WELLS,

JAMES R. RION.

Under this contract it will be seen that the State not only re-

acquired the canal and its appurtenances which had been con-

veyed to Pearce, trustee, but also acquired the Lynch lands,

which was a body of land lying between Gervais street, of the

city of Columbia, on the south, and the Elisha Daniels, or

Rawls, land occupied by the penitentiary, on the north, and

between the canal on the east and the river on the west, em-

bracing besides a strip of the main land, several small islands

in the Cengaree river.

The State continued to hold this property by its commis-

sioners appointed under the Act of 1878 until, under the pro-

visions of the A. A., approved December 28th, 1879,17 Stats., 87,

the canal itself was sold to David W. Thompson and Augustus

Fr. Neagle, and that Act it is important for the Court to con-

sider. It provides: “That the said canal commission shall, and

they are hereby, authorized to enter into a covenant and agree-

ment on the part and behalf of the State with David M. Thomp-

son and Augustus F. Neagle, their heirs and assigns, to sell and

dispese of the property ef the State known as the Columbit

4

10 Columbia Water Power Company vs.

canal, with a view to the development thereof, together with

the lands held therewith, and all and singular the rights, mem-

bers and appurtenances thereunto belonging, except the land

along the canal between the head of the Congaree river and the

south side of Gervais street, between which points all necessary

rights of way for widening and deepening canal, with all roadways

necessary on both sides of said canal, shall be granted."* * * *

Sec. 3. * * * and the right is hereby granted to widen

and deepen the said canal, and change the course thereof in such

manner as the said parties may consider necessary for the better

development of the said water power.

Sec. 4. That the said parties, their heirs and assigns, shall

have the right of way, and the same is hereby granted, in and

along the said canal, for the construction and operation of the

same from the head of the Congaree river, and at all points be-

low Gervais street on the Lexington shore, and on Broad river

to the head of the old canal; where any property lying along

the said canal or canals shall be held as the private property

of any person, the said parties, their heirs and assigns, for the

sake of the public improvement contemplated in the construc-

tion of the said canal or canals, and the better navigation of the

said Congaree and Broad rivers, and the transportation of sup-

plies to market, shall have the right to acquire such rights of way

by condemnation and assessment for the uses aforesaid in the

same manner as rights of way may by law be now acquired by

railroads.”

It is clear, under the provisions of this act, that Thompson

and Neagle acquired no interest in the land along the canal

between the head of the Congaree river and the south side of

rervais street, but only “such rights of way for widening and

deepening the canal, with all roadways necessary on both sides

of the canal.” The custody of the lands thus excepted from

the grant, was not in the act or elsewhere specially provided

for, and, therefore, under Sec. 60 of the General Statutes of

1882, passed into the custody of the Commissioners of the

Columbia Electric St. Railway, Light and Power Co. 11

Sinking Fund and became clearly separated from the canal

itself. That section provides:

“Section 60. The Secretary of State shall take charge of all

property of the State, the care and custody of which is not

otherwise provided for by law. He shall hold the same subject

to the direction and instruction of the Commissioners of the

Sinking Fund * * *,”

By the Act of the General Assembly, approved 9th February,

1882, 17 Stats., 855, it was provided: “That the canal com-

mission * * * be, and they are hereby authorized and di-

rected to transfer and deliver to the Board of Directors of the

South Carolina penitentiary the property known as the Colum-

bia canal, together with the lands held therewith, and all and

singular the rights, members and appurtenances thereto belong-

ing, which was acquired under and by virtue of the act above

entitled, and the contract by them entered into with Sullivan Fen-

ner in pursuance of said act, on the 25th day of September, A.

D. 18%8: Provided, That nothing herein contained shall author-

ize any action by the canal commission until a release has been

executed to the State of all the right, title and interest in the

property above described of Messrs. Thompson & Neagle or of

any other parties holding any interest therein.

“Sec. 2. That the said board of directors are hereby author-

ized and directed, on behalf of the State, to take into their pos-

session the said property, with its appurtenances; and for the

purpose of providing an adequate water power for the use of the

penitentiary, and for the other purposes to be hereinafter named,

they are authorized, empowered and directed to improve and

develop the same.”

* ok * ” * * * * * *

“Sec. 4. That the said board of directors shall have the right of

way, and the same is hereby granted, in and along the said

canal, for the construction and operation of the same; and if, in

enlarging and developing the said canal, or in constructing the

said dam, it become necessary to use the private property of any

12 Columbia Water Power Company vs.

person or corporation for that purpose, the said board of direc-

tors, for the sake of the public improvement contemplated in

the construction of the said canal, and the better navigation of

the said Broad and Congaree rivers, and the transportation of

supplies to market, shall have the right to acquire such right of

way in nfanner now provided by law.”

On the same day, by A. A., 17 Stats., 873, it was provided:

“That the commissioners of the Sinking Fund be, and they are

hereby, authorized and directed to transfer to the board of di-

rectors of the State penitentiary all that tract of land measuring

and containing about forty-five acres, and lying between the canal

and the Congaree river, and between Neagle’s bridge and Broad

River bridge, together with certain small islands adjacent thereto,

and to put them in possession of the same.

Sec. 2. That the said tract of land shall be used by the said

hoard of directors of the State Penitentiary for such purposes

incident to the maintenance and development of the State

penitentiary as they may deem proper.”

This was the land which it is seen above had been separated

from the canal in part, upon the conveyance to Thompson &

Neagle, and included in its description is the land now in ques-

tion. It is clear that the board of directors of the penitentiary,

although, under the provisions of the two acts, which, being on

their passage through the Legislature at the same time, must

he construed together, they would be custodians of the lands

thus separated from the canal, as well as of the canal and its

appurtenances, were custodians in different rights; they held the

canal and its appurtenances for development; they held the

lands described for the maintenance and development of the

State penitentiary; in their custody of the canal, having only

the right of way, for the construction and operation of the canal,

through the lands held for the uses of the penitentiary.

By A. A., approved December 24, 1887, 19 Stats., 1090, the

hoard of directors were required to transfer to the board of

trustees of the Columbia canal, not the penitentiary or

Columbia Electric St. Railway, Light and Power Co. 18

any lands held by the board for the use thereof, but

only “the property known as the Columbia canal, to-

gether with the lands now held therewith, acquired

under the Acts of the Legislature of this State with

reference thereto or otherwise.” And the board of directors

subsequently deeded the property to the board of trustees,

using the descriptive terms provided in the Act. By that deed,

then, only such lands passed as were covered by both elements

of the description—that is to say, lands that had been acquired

for the purposes of the canal, either under the A. A. or by

contract, as for instance, the contract with Sullivan Fenner, and

which were, at the time of the passage of that Act, s/ill held

with the canal as appurtenant thereto. Now, at the time of the

passage of that act, we have seen that the lands in question first

had never been acquired for the purposes of the canal, nor were

they then held in connection therewith, but had been acquired

and were then held for the purposes of the penitentiary. So

they no more passed under that deed to the board of trustees

than did the land upon which the buildings and walls of the

penitentiary itself are located, and the: land still remains the

‘property of the State of South Carolina. By Section 4 of the

Act it was provided that “the said board of trustees shall have

the right of way, and the same is hereby granted, in and

along said course of the canal, for the construction and operation

of the same.” and by the grant of the canal only an easement in

the lands passed,

The subsequent A. A., approved December 23, 1890, simply

authorizes the board of trustees to sell the canal with the land

which had been conveyed to it by the board of directors before

the completion of the canal, and is not important for considera-

tion as to what land passed with the canal.

It is needless for us to say that this action is based upon an

allegation of seizing in fee by the plaintiff of the lands in

question, and cannot be maintained by proof only of an ease-

ment, for in the latter case the question would be whether there

if Columbia Water Power Company rs.

had been any obstruction of the user of the easement, not

whether there had been any trespass upon plaintiff's lands.

B.

However, if this court shall differ with us as to this point

our second’ query is, did not the reserved right of the State,

conceded by the plaintiff in its complaint, to erect the water

station, carry with it the right to erect the steam plant as a ne-

cessary adjunct? It was so held by his Honor, the presiding

judge, who found as a matter of fact: “Now, has the defendant

the supplementary right to put in a steam plant? Prudence and

foresight justifies its erection on the banks of a canal along a

river where freshets come; and where time is important there

might be serious interruption to the industries of the defendant

company, and thus of the penitentiary; therefore, the defend-

ant has a right to use so much steam plant as is necessary to

supplement its water power at such times as the water power

is unavailable by reason of freshets or necessary repairs to the

canal, or other causes. The dam may break, rains may swell

the river, and there might be a long interruption of the use of

the water power, and it would be necessary to resort to the

steam plant to carry on the work. It is common to use steam

as an adjunct to water power plants. The defendant cannot

erect any more steam plant than is necessary for it to use as a

supplement to the water power which it has received from the

State.”

In its complaint plaintiff alleges, paragraph I1, “That subse-

quent to said notification the defendant, acting as the duly au-

thorized agent of the State, through the board of directors of

the penitentiary, submitted specifications and plans for the con-

struction and erection of a plant or works for obtaining, or pro-

ducing, or making available the said water power, and the

plaintiff did approve the same, as not taking more or less em-

bankment of land than was necessary for the development

or obtaining the five hundred horse power of water power

Columbia Electric St. Railway, Light and Power Co. 15

for the use of the State, and did allow the defendant, as the

agent of the said State, to proceed with said work, for the pur-

pose of developing the said water power, as it was the intention,

purpose and desire of the plaintiff to perform all of the condi-

tions, obligations and terms of the said Act of the General

Assembly of the State of South Carolina authorizing the sale

of the said property, as it is its purpose and desire now to do;

and, as plaintiff is informed, said work and construction was

carried on and conducted, on behalf of the State, to its com-

pletion, in accordance with the plans and_ specifications as

submitted.”

The State Supreme Court held, “It is contended that said con-

tract did not confer upon the defendant the right to erect the

steam plant. This depended upon the fact whether it was

merely incidental to and essential to the enjoyment of the use

of the water power plant. The parties to the action had the

right of trial by jury as to the legal issues raised by the plead-

ings, but neither a demand was made therefor on circuit, nor was

there an exception raising such question. This court must

assume that the Circuit Judge properly decided al] questions of

fact upon which his judgment had necessarily to rest. Even if

there was error on his part, in his findings of fact, it is not the

subject of review by this court in a law case. This court,

therefore, cannot review the testimony for the purpose of de-

termining whether or not the steam plant was merely incidental

to the water power plant and essential to the enjoyment of

its use.”

Il.

Is the defendant making an improper use of the water

power reserved by the State? We say that it is not. We think

that the whole question is to be determined by the construction

of the A. A. of December 24, 1887, 19 Stats., 1,090, above re-

ferred to, and his Honor, the Circuit Judge, was of the same

opinion.

ESE RE NCS eee

16 Columbia Water Power Company vs.

By that Act it will be seen that the State was transferring

from herself to the board of trustees of the Columbia canal

for the benefit of the city of Columbia a most valuable property,

without any consideration whatever, except the use of the water

power, which was reserved under the provisions of the act, which

are as follows:

“Sec. 2. That the said board of trustees are hereby authorized

and directed, for the development of the said canal, to take

into their possession the said property with all its appurtenances;

and for the purpose of navigation, for providing an adequate

waler power for the use of the penitentiary, and for other purposes

hereinafter named, they are hereby authorized, empowered and

directed to improve and develop the same. * * *

Sec. 7. That the board of trustees shall, within two years

from the ratification of this act, complete the said canal so as

to carry a body of water 150 wide at the top, 110 feet wide at

the bottom, and 10 feet deep, from the source of the canal down

to Gervais street, and furnish to the State, free of charge, on the

line of the eanal, 500 horse power of water power, to Sullivan

Fenner or assigns 500 horse power of water power, under his

contract with the canal commission, and to furnish the city of

Columbia 500 horse power water power at any point between the

source of the canal and Gervais street the city may select; and

shall, as soon as it is practicable, complete the canal down to the

Congaree river, a few yards above the mouth of Rocky branch,

Provided, that the right of the State to the free use of the said 500

horse power shall be absolute, and any mortgage, assignment, or

other transfer of the said canal by the said board of trustees or thetr

assigns shall always be subject to this right.

“Sec. 8. That in order to secure and aid the speedy comple-

tion of the canal, from its source to Gervais street, for furnishing

the said water power to the State and to the city of Columbia,

the board of directors of the South Carolina penitentiary shall

furnish to the order of the said board of trustees such convicts

as may, from time to fime, be in the penitentiary unemployed

Golumbia Electric St. Railway, Light and Power Co. 17

and not under contract, and are now allowed by law to be em-

ployed or worked outside of the walls of the penitentiary.”

In Slidell v. Grandjean, 111 U. S., at page 329 (L. C. P. Ed.),

the rule applicable to the construction of this act is thus laid

down: “It is also a familiar rule of construction that where a

statute operates as a grant of public property to an individual, or

the relinquishment of a public interest, and there is a doubt

as to the meaning of its terms, or as to its general purpose, that

construction should be adopted which will support the claim of

the government rather than that of the individual. Nothing

can be inferred against the State. As a reason for this rule it

is often stated that such acts are usually drawn by interested

parties; and they are presumed to claim all they are entitled to.

The rule has been adopted and followed by this court in many

instances in the construction of statutes of this description.

Charles River Bridge Co. v. Warren River Bridge, 11 Pet., 536;

R. R. Co. vy. Litchfield, 23 How., 88 (64 U. S., XVI, 509); the

Delaware Railroad Taz, 18 Wall., 206 (85 U. S., XXI, 888).

The rule is a wise one; it serves to defeat any purpose concealed

by the skillful use of terms to accomplish something not ap-

parent on the face of the act and thus sanctions only open deal-

ing with legislative bodies.”

In the case of Grant v. Leach, 20 La. An., 329, s. c. 96 Am.

Dec., 493, it was ruled: “Reasonable doubts as to proper con-

struction of legislative grants are to be resolved in favor of the

State, and if it is susceptible of two meanings, that construction

is to be adopted which works least harm to the State.” See the

same ruling by this court in Chicago Bridge Co. vs. Binghamp-

ton Bridge Co., 3 Wallace, 51.

Especially is this true when the consideration reserved is a

merely nominal one. The act we are now considering must be

construed as constituting a power of attorney prescribing the

conditions upon which the board of directors of the peniten-

tiary, a public board, were to transfer the property to the board

of trustees of the Columbia canal, a quasi public board. Unless

18 Coiumbia Water Power Company vs.

its provisions were capable of being performed, and were actu-

ally performed, there was no power in the board of directors to

make the transfer. Its provisions constituted conditions pre-

cedent to the transfer of the property, and were to be liberally

construed, not strictly, as with conditions subsequent. In other

words, if the board of directors of the penitentiary could not,

and did not, reserve to the State of South Carolina, “free of

charge on the line of the canal, 500 horse power of water power,”

and if that obligation was not imposed upon the board of trus-

tees, by section 7 of the act itself, then the board of directors

had no authority, under the act, to transfer the title of the

property. The State has indicated her purpose of having the 500

horse power free of charge, and also “that the right of the State

to the free use of said 500 horse power shall be absolute and

any mortgage, assignment, or other transfer of the said canal

by the said beard of trustees, or their assigns, shall always be

subject to this right,” a qualification attaching to every transfer

that was made. If an individual should give to another a power

of attorney to transfer an estate upon condition that the at-

torney should reserve to him the use of a stream of water upon

such terms as would indicate, without question, his intention to

have an easement, or a right in gross, of an inheritable char-

acter, and the attorney could not draft a conveyance by which

such purpose could be accomplished, then the power of convey-

ing the estate would not become operative. It is given him to

perform an act only upon the performance of a condition pre-

cedent, and if the condition precedent is, or becomes impos-

sible, the power itself falls to the ground. g

Moreover, the board of trustees were a quasi public body, upon

whom duties to the public were imposed. It was made their

duty, not a matter of discretion, to complete the canal, and

likewise to furnish the water power to the State and the other

parties named in the Act. This was a duty which could have

been enforced against them by the public, and a wilful failure

to perform would have subjected them to indictment. Now,

-

Columbia Electric St. Railway, Light and Power Co. 19

by the act authorizing the board to make the sale under which

plaintiff elaims, the purchaser was to take the property subject,

not to easements and water rights reserved, but “subject to all

the duties and liabililies” imposed by the act constituting the

board, amongst them the public duty of furnishing to the State

the 500 horse power of water power, which duty would be en-

forcable by indictment or mandamus. The argument of coun-

sel for appellant as to the rights of dominant and servient tene-

ments have no application to the case.

When, therefore, the State declared in the Act of 1887 that

her right to the use of the 500 horse power should be absolute

she clearly meant to reserve the right to dispose of it as she

pleased.

“Absolute,” says Rapalje & Lawrence (Law Dict.), “means

complete, final, perfect, unconditional, unrestricted,” as quoted

and applied in Fuller vs. Missroom, 35 8. C., 330. In the Cen-

tury Dictionary, vol. 1, p. 21, we read: “ABSOLUTE: 1. Free

from every restriction; unconditional * * * 2. Perfect;

complete; entire; possessed as a quality in the highest degree.”

And then among the illustrations we have: “Absolute estate,

in law, an ungualified, unconditional estate, entitling the owner

to immediate and unlimited possession and dominion.” In

Worcester’s Unabridged Dictionary we read: “ABSOLUTE:

1. Clear from other things; independent of anything else; per-

fect in itself; unrestricted; unlimited; complete.”

Plaintiffs contended that this right of the State to water

power is an incorporeal right—an easement for the peniten-

tiary—that it cannot be assigned or leased. We reply, that if the

canal had been completed in 1887, the Legislature would have

reserved this water power to herself in the language of the

act. of 1879, but the canal was not completed, there was no

water in it, and hence there was at that time no water power.

The State parted with this valuable property on condition that

the quasi public “board of trustees” would create this water

power, and would, when ii was created, turn over 500 horse

20 Columbia Water Power Company vs.

power of this water power, issuing out of the thing granted, to

the State for its free and absolute use—not for the penitentiary,

but at the penitentiary, for the use of the State. If it be an

incorporeal right, it is not an casement reserved only for the

penitentiary. It is the property of the State, and, therefore,

the State can do with it as she pleases. She may use it as she

uses her phosphate beds—receive a part made available in con-

sideration of the other part being used by the grantee or lessee

or license for his own purposes as his compensation. In short,

if plaintiff is right in his -ontention, even then his position can

be sustained only by giving to the word “absolute” the meaning

of “perpetual,” or some other definition so unusual as not to

tind any place in so high an authority as “Worcester’s Un-

abridged Dictionary,” in violation of the rule laid down in

Slidell v. Grandjean 111 U. S., 437—if, indeed, there can be

any doubt that “absolute” means “unconditional,” “unlimited,”

“unrestricted.”

The State of South Carolina owned the canal and_ her

legislature had sovereign power to create new characters of

estates or modify old ones and could make easements in gross

inheritable or assignable. ‘The canal iiself was a quasi corpor-

ate or ideal thing, irrespective of its ownership, and was not

held as an incident to an estate in lands, but all lands con-

nected with it were held as an incident to it. Indeed, it was

capable of existence and transfer independently of an estate of

any character in a single foot of land. The value of the canal

was the water power it was capable of furnishing and the

reservation of a definite amount of water power was a reserva-

tion of a proportionate interest in the principal thing itself.

An incerporeal right if inheritable is an incorporeal heredita-

ment; and the word “absolute” imports inheritance. Fuller v.

Missroom, 35 S. C., 330, and cases there cited. We do not

deem it necessary to go into the very nice learning which dis-

tinguishes a reservation from an exception, or whether this re-

servation or exception of water power, if an easement is an ease-

Columbia Electric St. Railway, Light and Power Co. 2\

ment appurtenant or in gross; for whatever it be, the State has

the absolute use of it, and may do with it as she pleases. If,

however, there is any desire to pursue the investigation, a full

discussion of it will be found in the cases of Haggerty v. Lee,

54 N. J. L., 580 (25 Att. Rep., 319), and Chaflin v. R. R. Co.,

157 Mass., 489 (32 N. E. Rep., 659), and in a full note to these

two cases as republished in 21 L. R. A., pps. 631-641. To ac-

cede to plaintiff's position would be to hold that the State, hold-

ing absolutely a property capable of developing 10,000 horse

power of water power could not dispose of the greater part

of it, and reserve a portion to herself, which reserved portion

she could so use as’ to get the benefit of a part thereof without

expense, by allowing another party to use the remainder of this

reserved portion in providing the State with her needed part,

and with a money income besides. It would be, to further hold

that the State could not utilize the power of which she retained

the absolute use, unless she expended herself a considerable

sum of money in erecting a power plant; in other words, that

she could not allow a use of her water power as compensation to

one who would render such water power available to her. And

that is all that has been done by the contract assailed in this case.

The State has not sold her reserved water power, nor assigned

it, nor even leased it out for a money consideration only; she

has more properly contracted for iis development by allowing

only the use of part, so that she might receive the other part

for her own purposes without expense, and for a money con-

sideration besides.

But as matter of law, the right to use water as a generator of

power is not always strictly an easement which is “a privilege

or convenience which one neighbor has of another without

profit,” (Angell Water Courses, Sec. 142), but is the service

aquachaustus of the civil law, or right of profit, or profit a pendre

of the common law (Ibid., 143). As Judge Foster puts it, in

Goodrich v. Burbank, 12 Allen, 459: “It seems to be held uni-

formly, that if enjoyed in connection with a certain estate, they

22 Columbia Water Power Company vs.

are regarded as easements appurtenant thereto; but if granted

to one in gross, they are treated as an estate or interest in land,

and may be assignable or inheritable.” See several other cases

cited in notes to section 143 of Angell.

On page 13 (x 10) of Washburn on Easements, the author

rays: “If the easement consists of the right of profit a prendre,

such as taking soil, gravel, minerals and the like from another’s

land, it is so far of the character of an estate or interest in the

land itself, that if granted to one in gross it is treated as an

estate and may, therefore, be one for life or inheritance. But

if it is an easement proper, such as a right of way and the

like, and is granted in gross, it is a mere personal interest and

is not inheritable.” And in a note the author says: “The

above positions are approved by Sharswood, J., in Tinicum Fish-

ing Co. v. Carter, 61 Penn. St., 39.” Mr. Washourn pursues

this subject through four pages and cites and quotes from sev-

eral cases in support of his proposition, that a grant of the

right to use water to one in gross creates an estate that is as-

signable and inheritable. Thus in Goodrich v. Burbank, supra,

the grant of a right to draw water from a spring on the land

of grantor by means of an aqueduct was assignable. See, too,

Poull v. Moakley, 33 Wisc., 482, “that an easement of a canal

is assignable, though not appurtenant to any estate.” And the

language quoted from the court in Hall v. Ionia, 38 Mich., 493:

“The value of water as a distinct inheritance has been recognized

in all periods, and its ownership is well established as not de-

pendent upon lands to which it may be appurtenant, but as

having a separate and distinct importance.” And from Goodrich

v. Burbank: “We are unable to distinguish between the right

to take water by a canal from a pond for the purposes of power,

and the right to take it from a spring in a pipe for domestic

purposes.”

There is no difference in the law applicable to artificial chan-

nels through which a natyral stream is diverted (as in the case

Columbia Electric St. Railway, Light and Power Co. 28

at bar) and to natural streams. Dunklee v. R. R. Co., 24 N. H.,

506; Angell Waterc., Sec. 540.

“Profit a prendre is a right to take either the fruit or pro-

ducts of the land of another, or the materials which constitute

it. This right of profit a prendre, if enjoyed by reason of hold-

ing a certain other estate, is regarded in the light of an ease-

ment appurtenant to such estate. Where the right of profit a

prendre belongs to an individual, distinct from ownership in

other lands, it takes the character of an interest or estate in the

land itself, rather than that of a proper easement, and may

be held in fee, for life, or for years. Profits a prendre differ

from easements, in that the former are rights of profit and the

latter are mere rights of convenience without profit. But the

principal distinction is between easements and profits a prendre

in gross, the latter being held independently of any dom‘nant

estate, whereas for the existence of an easement, two estates, the

dominant and servient, are necessary. Profits a prendre are

acquired by grant or prescription, and never by custom.” 19

Am. & Eng. Enc. of Law, p. 259. See, too, Hall v. Ionia,

38, Mich., 493, and especially pages 498-9; Boist v. Empie,

1 Selden, 33; Owen v. Field, 102 Mass., 107-8; Amidon v. Har-

ris, 113 Mass., 63; Hill v. Shorey, 42 Vt., 614. See, too, Gould

on Waters, Sec. 299, on page 562, where it is said: “So the

privilege of laying pipes in another’s land for the purpose of

taking water and of entering upon the land to lay, repair or

renew such pipes, is an interest in the realty which is assign-

able, descendable and devisable, when the grant contains words

of inheritance.” And in the case at bar these rights of enter-

ing, laying pipes and taking water have been conceded, and

were rights reserved to the State by law. Angell Waterc.,

Sec. 158.

We cannot enforce this idea more forcibly than by quoting

from the language of the State Supreme Court in this case.

It says:

“Having reached the conclusion that the State is not an in-

24 Columbia Water Power Company vs.

dispensable party in determining this cause of action, the next

question for consideration is whether or not the contract be-

tween the State and the defendant relative to the 500 horse

power of water power is null and void.

“This contract received legislative consideration when it was

ratified by the act of the legislature hereinbefore mentioned, and

although such construction is not binding on this court, still it

shows the intention of the State when it reserved the 500 horse

power of water power.

“We think the construction placed upon said contract in

1892 by the Legislature as to the 500 horse power reserved to the

State was in harmony with the terms of said contract, the pro-

visions of Section 7 of the Act of 1887 being that the right of

the State to the free use of the said 500 horse power should be

absolute.

“The use of the word ‘absolute’ was for the purpose of cre-

ating a right in the State to this 500 horse power separable and

distinct from the ownership of other lands and not dependent

upon any particular land to which it may be appurtenant.

“This reservation was a right of profit a prendre. Campbell,

C. J., in delivering the opinion of the Court in Hall v. City of

Tonia et al., 38 Mich., 423, says: ‘There is no foundation for

the claim that a right to the perpetual use of the water must be

dependent upon a particular estate with which it is connected.

Some confusion has, perhaps, been caused by an attempt among

writers to create symmetry in the law by putting all rights con-

nected with land or springing from them into classes, and by

speaking of these particular rights as easements, which very

commonly requires both a dominant and servient estate.

“But every right of property must usually have some peculiar

qualities of its own, which must not be destroyed by inappro-

priate attempts to classify it with different kinds. The old

maxim omnis definitio periculosa is especially true when things

of essentially different qualities are placed together under one

head.

Columbia Electric St. Railway, Light and Power Co. 25

“The value of water as a distinct inheritance, either for cre-

ating power or for other purposes of use or consumption, has

been recognized in all periods, and its ownership is well estab-

lished as not dependent on lands to which it may be appurtenant,

but as having a separate and intrinsic importance.

“There may be an occasional dictum and possibly some de-

cisions to the contrary; but most cases where any doubt seems

raised on this question will be found to rest on peculiar facts

which in no way involve the general doctrine. The facts are

often such as to confine the use of water not only to special

places, but also to specified purposes; but this limited use is the

exception and not the rule,’ citing a number of authorities. Pro-

ceeding, he says: ‘Experience has shown that in many instances

the right to use and dispose of water may not only be more valu-

able than any land which is occupied for its gathering and dis-

posal, but it is also a special value to be taken to a distance

and parcelled out among several users or occupants. Water

works are only made available by the sale of water to consumers,

and valuable water power is frequently distributed among sev-

eral mills in large and small quantities and may not be used by

the owner at all.

“The ownership of it cannot be confined to the right in the

nature of a license, and is as well recognized a title or interest

of a real nature as land itself, without some use of which it

could not be made available.

“Foster, J., in speaking for the Court in Goodrich v. Burbank,

12 Allen, 459, uses this language: ‘The water itself may not

be the subject of property, but the right to make it and to

have pipes laid in the soil of another for that purpose and to

enter upon the land of another to lay, repair and renew such

pipes is an interest in the realty assignable, descendible and de-

visable.’ On this subject the language of Judge Curtis is as fol-

lows: ‘I know of no rule of the common law which prohibits

grants of the incorporeal right to divert water from being made

in gross. If I have a spring, I may sell the right to take water

26 Columbia Water Power Company vs.

from it by pipes to one who does not own the land across which

the pipes are to be carried, and I may either restrict the use

to a particular house or not, as I please. It is true the grantee

cannot make the grant useful without acquiring from the owner

of the intermediate land the right to lay pipes therein, nor can

he use th water in a house until he obtains the right to possess

that house; but these may be acquired afterwards. Incorporeal

rights may be inseparably annexed to a particular messuage or

tract of land by the grant which creates them and makes them

incapable of separate existence, but they may also be granted in

gross, and afterwards, for purposes of enjoyment, be annexed to

a messuage or land and again severed therefrom by a convey-

ance of the messuage or land without the right or a conveyance

of the right without the lands.’

“Lonsdale Co. v. Moiese, 21 Law Rep., 664: * * * ‘Weare

unable to distinguish between the right to take water by a canal

from a pond for the purposes of power and the right to take ix

from a spring in a pipe for domestic purposes, watering of cattle,

or to supply an artificial jet or fountain, and to sell it to any

others for any uses they may desire to make of it.’ ”

The following authorities will also throw light upon the sub-

ject:

Tinicum Fishing Co. v. Carter, 61 Penn. St., 39.

19 Am. & Eng. Enc. of Law, p. 259.

Gould on Waters, Section 299, p. 562.

Poull v. Mockley, 33 Wis., 482.

Washburn’s Easements & Servitudes, Section 12 and 17a.

Angell on Water Courses, Section 143.

We are of the opinion that the contract between the State

and the defendant was not null and void.

Counsel for plaintiff, however, urge that the Legislature has

indicated its purpose to reserve this 500 horse power for the

use of the penitentiary. .But it will be seen that the only

mention of the penitentiary in connection with the use of the

water power is found in Section 2, above quoted, where it is

Columbia Electric St. Railway, Light and Power Co. 27

said: “For the purposes of navigation, for providing an ade-

quate water power for the use of the penitentiary and for other

purposes hereinafter named, they are hereby authorized, empow-

ered and directed to improve and develop the same.” ‘Then in

Section 21 it is that the board of trustees “may sell or lease the

power of the canal, subject to such rules and regulations as it

shall prescribe, having first provided for the State with 500 horse

power of water power at the penitentiary.”

Now, there is nothing in either of these provisions to indicate

that the use which the State was to make of the 500 horse

power was to be measured by the necessities of the penitentiary.

It is true that it was provided for the penitentiary and other

purposes, and it was provided at the penitentiary, but the right

of the State to its free use was still to be absolute.

We think this is the proper view of the act of 1887 when

taken alone, but we think that the view is strengthened when we

consider all the acts upon the subject of the canal as in pari

materia. It will be observed that whenever the State was

itself contemplating the continuous ownership of the canal and

its development and utilization by its own agencies it provides

only for the reservation of such water power as would be ade-

quate for the uses of the penitentiary. But whenever she con-

templated the transfer of the property to another, she pro-

vides for the absolute use for herself of a fixed and definite

amount of water power. The A. A. of December 23d, 1879, 17

Stats., 87, contemplating a transfer of the property, provides:

“Section 5. That in consideration of the public improvement

and general benefit aforesaid, and the use by the State of fifteen

hundred horse power of water power between the city water works

and Senate sireet, to be used as hereinafter provided, the city of

Columbia is hereby authorized to enter into an obligation to

hold the said parties, their heirs and assigns, harmless as against

all damages done from the acquisition of all rights of way be-

tween the head of Congaree river and Gervais street, on the

Columbia shore, and against the flowage of all low lands and

28 Columbia Water Power Company vs.

back water above the dam so to be constructed across the

Congaree.””

Then in Section 9 prescribes:

“Sec. 9. That the said parties, their heirs and assigns, in con-

sideration of the rights and franchises herein granted, shall,

within the period of three years from the date of said contract,

complete the construction of the dam or dams and the bulk-

heads as hereinbefore provided and shall complete the canal

or canals, from the said bulkheads down to the quarry situate

upon what is known as the Kinsler tract, about seven-eighths

of a mile below Gervais street, said canal on the Columbia shore

to be so constructed as to develop 15,000 horse power, and they

shall have in operation within the time aforesaid one cotton

ill of 16,000 spindles, and they shall give to the State, between

the Columbia Water works and Senate street, fifteen hundred

horse power of water power, to be used or disposed of in such man-

ner and on such terms as the State may direct.”

By the A. A. of February 9, 1882, 17 Stats., 855, however,

where it was contemplated that the State should continue to

own the canal, and that it should be developed by the board

of directors of the penitentiary, it was provided in Section 2:

“Section 2. That said board of directors are hereby authorized

and directed, en behalf of the State, to take into their possession

the said property, with its appurtenances; and for the purpose of

providing an adequate water power for the use of the penitentiary,

and for the other purposes to be hereinafter named, they are

authorized, empowered and directed to improve and develop the

same.”

And in Section 6 it is provided:

“Section 6. That the board of directors are authorized to

furnish to the city of Columbia, for the purpose of operating

its water works, and other purposes, five hundred horse power

of water power; and to Sullivan Fenner, under his contract with

the canal commission, five hundred horse power of water power;

and after reserving for the use of the penitentiary a power

Columbia Electric St. Railway, Light and Power Co. 29

sufficient to meet the demands of its ordinary operations, and other

industries conducted and carried on within its walls, they are

further authorized, with the comptroller general, on behalf of the

State to lease to other persons or corporations water power upon

such lerms and upon such annual rental per horse power as in

their judgment may be proper ;and also to lease such mill sites

along the line of the said canal, as may be owned by the State,

upon such terms as may be deemed most advantageous to the

interest of the State.”

Then, when the board of directors are authorized by the A. A.

of December 24, 1887, 19 Stat., 1090, to transfer the property

from the State, the language used by the Legislature recurs to

an absolute reservation of a fixed amount of water power for

the State, irrespective of fhe amount that might be required

by the penitentiary, and says that it is to be “absolute.” And,

inasmuch as there was no express repeal of the A. A. of February

8th, 1882 (17 Stat., 855), the use that the State was to make

of her water power so reserved was to be determined by refer-

ence to Section 6 of that Act, that is to say: “After reserving

to the use of the penitentiary,” out of said five hundred horse

power “a power suflicient to meet fhe demands of its ordinary

operations, and other industries conducted and carried on within

its walls, they are further authorized, with the comptroller

general, on behalf of the State, to lease to other persons

or corporations water power,” etc. This-seems to have been the

view of the board of directors of the penitentiary and the comp-

troller general in executing the contract with defendant. (See

printed record, pp. 16-19).

Suppose, however, that the State contemplated a reservation

of 506 horse power for the use of the penitentiary, is she to be

restricted to any particular use by the penitentiary, and was it

not competent for the board of directors of the penitentiary to

contract for the development of the water power as it has done

with the defendant in this case? How can it be said that it is

any less a use of the penitentiary for the defendant to develop

80 Columbia Water Power Company.

the water power and use a part of it for its own purposes in

consideration of the development, than it would be for the State

herself, out of the funds appropriated for the penitentiary, to

pay for its development? And could she not sell or lease the

electric power developed thereby, as it now sells or leases its man-

ufacturing power within the walls of the penitentiary itself? Is

there anything in the law which prevents the board of direc-

tors from utilizing the convict labor in manufacturing outside of

the walls of the penitentiary, or from selling the productions of

its convicts? If not, certainly it cannot be said that there is

anything which prevents them from selling or disposing of the

products of its water power reserved for the purposes of the

penitentiary in the shape of electric power developed. By what

tribunal is it to be determined what are penitentiary uses? Is it

not the Legislature? And has not this been determined by the

A. A., approved December 24, 1892, 21 Stats., 94? See brief

of argument for motion to dismiss or affirm, pp. 11-12 where

the Act is quoted. WM. H. LYLES,

Counsel for Defendant in Error.

BRIEF OF ARGUMENT OF WM. H. LYLES FOR MOTION TO

DISMISS OR AFFIRM, IN REPLY.

DUPREAE GOURT OF Tt UTED STATES

OCTOBER TERM, 1897.

No. 317.

THE COLUMBIA WATER POWER COMPANY,

Plaintiff in Error,

VS.

THE COLUMBIA ELECTRIC STREET RAILWAY,

LIGHT AND POWER COMPANY,

Defendant in Error.

In Error to the Supreme Court of the State of South

Carolina, at Columbia, S. C.

The record shows that only two questions are presented in the

State courts, to wit:

1. Whether the State of South Carolina, through her board

of directors of the penitentiary, could make such a contract as

was made with the defendant for the use of the five hundred

horse power of water power reserved for the State under the

Act of 1887.

2. If 90, whether the reserved right of the State entitled the

defendant to erect a steam plant on the banks of the canal as

subsidiary to its water power plant.

No amount of argument can bring before the court any other

question.

2 Columbia Water Power Company vs.

Plaintiff's complaint admitted the right of the State to the

five hundred horse power of water power, and admitted the right

of the defendant to erect its water power plant where it is. This

being so, and the right of the defendant having been passed

upon by the State courts simply upon a construction of the

Act of 1887, it is respectfully submitted that it was simply the

case of a junior and senior grant, and the plaintiff’s right was

decided only upon local laws.

In the Missouri Pacific Rwy. Co v. State of Nebraska, 164

U. S., 403, this Court has said:

“The Supreme Court of Nebraska has construed this statute

as authorizing the board of transportation to make the order

questioned in this case, which required the railroad company to

grant to the relators the right to erect an elevator upon its right

of way at Elmwood Station on the same terms and conditions on

which it had already granted to other persons rights to erect

two elevators thereon. The construction so given to the statute

by the highest court of the State must be accepted by this court

in judging whether the statute conforms to the constitution of

the United States. Chicago, M. & St. P. R. R. Co. v. Minnesota,

134 U. S., 418, 458 (33-970), 3 Inters. Com. Rep., 209; Illinois

C. R. Co. v. Minois, 163 U. 8., 142, 152, 41 L. Ed., 107-110.”

In the case of F. G. Oxley Stave Co. v. County of Butler, 166

U. 8., 649, the Court rules: “The validity of subscriptions by

a county court to the stock of a railway company, and of a

conveyance to that company, and the matter of fraud in a decree,

are questions of local law or practice on which the judgment of

a State court cannot be re-examined by this Court.”

The very language of the State court in the case now under

review indicates that it was in no way controlled by the Act

of 1892. The Court here says (printed Record, page 31):

“This contract received legislative construction when it was ra-

tified by the act of the legislature hereinbefore mentioned and al-

though such construction is not binding on this Court, still it

shows the intention of the State when it reserved the five hun-

-

Columbia Electric St. Railway, Light and Power Co. 8

dred horse power of water power. We think the construction

placed upon said contract by the legislature as to the five hun-

dred horse power of water power reserved to the State was in har-

mony of the terms of said contract, the proviso to Sec. 7 of the

Act of 1887 being that the right of the State to the free use of

the said five hundred horse power of water power would be ab-

solute.”

1f this be true as to the right to the use of the water power

itself, the question as to the right to erect a steam plant cannot

be considered by this Court, for it is clear that that was a ques-

tion of fact, and decided as such by the State courts, where it

is said: “It is eontended that said contract did not confer upon

the defendant the right to erect a steam plant. This depended

upon the fact whether it was merely incidental to and essential

to the enjoyment and use of the water power plant. The par-

ties to the action had the right of trial by jury as to the legal

issues raised by the pleadings, but neither a demand was made

therefor on circuit, nor was there an exception raising such

question. This Court must assume the circuit judge properly

decided all questions of fact upon which his judgment had

necessarily to rest. Even if there was error on his part in his

findings of fact, it is not the subject of review in this Court in a

law case. This Court, then, cannot review the testimony for

the purpose of determining whether or not the steam plant was

merely incidental to the water power plant, and essential to the

enjoyment of its use.”

In Egan v. Hart, 165 U. 8., 188, it is said, after reciting the

facts decided by the Court below:

“Now, the foregoing findings by the trial court, approved and

‘affirmed by the Supreme court of Louisiana, that is, the non-

navigability of the stream, and the concurrent participation by

the United States and the State in the building of the dam, are

purely questions of fact, and, therefore, as we have said, are

conclusive.

4 Columbia Water Power Company.

“It is clear that if these questions of fact are adequate to de-

termine the controversy between the parties, and broad enough

to maintain the judgment independent of any Federal ques-

tion, that we are without jurisdiction, although the State court

may have also decided such a question. Fustis v. Bolles, 150

U. 8., 361 (87: 1111); Connecticut, New York & N. E.R. Co. v.

Woodruff, 153 U. 8., 689 (38: 869); Hammond v. Connecticut

Mut. F. Ins. Co., 150 U. S., 633 (3%: 1206).”

WM. H. LYLES,

Counsel for Defendant in Error.

‘