Western Carolina Democrat and French Broad hustler. [volume] (Hendersonville, N.C.) 1913-1915, 1915-09-30

4 lhC6nGEC1IOAW ~ SANAA
development shall not be taken" To
meet this provision the influence be-
hind these great aggEegations of cap
ital were powerful enough, it seems
tn procure later at that session he
| enactment of Chapter 800 laws 1907,
which authorizes street and Interur-
ban railway companies whenever
such company shall not own the entire
water 'front.' or all the landss water
rights, or other easements which may
be needed to fully develop such water
power to purchase with further pro-
visions thot if the company could not
agree with the owner for the pur-
chase of such lands, water rights and
other easements the same might be
condamned in the name provided
for railroads. The adroit purpose of
this alternative probably passed un-
perceived.
When this same matter was here
between these. same partiesp r. r. v.
Oates ,164 N. G. at p 169 the court
said cit would therefore seem that if q
company needed a. water power to
produce electric power and styled it,
self an Electric & Power Company it
could not condemn the water power
of another for that purpose. Oh. "a
Laws 1907. But IL it. styled itself "a
Street and ~Interurban Railway Com
pany" and should own land on one or
both sides Of a stream which can be
used in developing water power it
might have condemned the additional
lands needed to fullydeXelop such
powers" Oh. 302 Laws 1907. In Pow
er Co. ". Whitney, $50 N. C. "a, it
was held that water powers could not
be condemned in this State, it being
against u public policy as declared
by Oh. "A, Laws 1907. While matters |
were in this state, the Legislature en-
acted Oh. "a, laws 1913, which was en-
titled IAN Act to amend Chapter 302,
laws 1907 relating to the right Of
eminent domain" The amendment
consisted in the addition to the said |
chapter 302, Section 1. laws 1907 Of
the following words: Provided furth-
er that such company or companies
shall not have the power to condemn
any water power, right or property of !
any person, firm or corporation en-
gagged in the actual service of the
general public. which such power,
right or property is being used Or held
to be used Or to be developed for use
or IN connection with or in addition
to any power actually used by SUCH
person, firm or corporation serving
the general public"
1t appearing in that case as it does
in this that this particular property
VS. held to be Used and developed
lit connection win and in addition 10
power actually used by the defend
ant Light & Power Company in sup
electric lights and power to
Hendersonville and surrounding coun
try, this court held that judgment
should have been entered for the de-
fendants. j
In this new proceeding the plaintift
seeks to evade that decision by setting
Up the plea that defendants cannot
use or develop one half interest in
said water power, and therefore the
is entitled to condemn the
and take the whole Of it for its :
use. If this were true. the de. :
endants would have equal right to !
condemn the plaintiffs half interest :
n the property for their own use, the
more especially as the plaintiff offered 9
he defendant only 81, 100000 for their .
la1f interest and the defendant offer :
d the plaintiff $40,0O0.00 for its half :
which the plaintiff admits '
hat it declined. :
In R. r. v. Oates 164, N. C. at D 179 =
he court said a sto this identical pro- I
erty "The matter turns therefore on !.
he question. whether under the terms :
f Oh. "a, laws 1913 the land in ques- :
ion is subject to condemnation" and =
be court further held that it could not ,
re condemned If it was "held to he y
sed or to be developed for use in =
.onnection with or in addition to any y
over actually used" :.
On this trial the court submitted =
he following two issues to the jury: =
II Are the water powers, rights and =
ropert1es on the land Of the respon- =
ents, as described in the petition, =
apable of being developed for the K
reduction Of electric power for use .
4 connection with and in addition to =
electric power already developed :"
1 use by the respondents Henderson -
lille Light & Power Company? (2) -
re the water powers, rights and pro- =
critics on the land of the respondents q
+ described in the petition being held y
y the respondent, Hendersonville y
light & Power Company, to be used y
to be developed for use in connec- q
on with, or in addition to any pow y
r now actually used by the said re- =
pondents, Hendersonville Light & q
Company? y
There was much, and conflicting ev- =
lence on these propositions and the l!
efendants were certainly entitled to :,
ave these issues submitted to the II
Try. The defendants could not be
of their property without due y:
of law and according to the o.
w of land. They had the right to :
ave these issues of fact found by a Il
Try. and upon such findings the court !.
1ould have imposed judgment of law, .
lbject to review on appeal. The !,
ourt, however, withdrew this right :,
ON these defendants and directed y
lie jury to answer both issues against II