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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Defendants Brief
- **Published:** January 1, 1899
- **Citation:** 172 U.S. 475

## Text

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.

‘

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0252%3A5. Public record. Not legal advice.