Where the answer in a state condemnation case attacked the
taking as a taking for private use in violation of the Fourteenth
Amendment and a dissenting opinion in the state supreme court bore
evidence that the federal Constitution was invoked against a
construction of the state laws by which the taking was justified,
held that this Court had jurisdiction to review.
Charter and state laws authorized a corporation to build and
operate an electric railroad, to condemn water power and employ it
in generating electricity for use in running the road, to sell the
surplus of current so generated, and, in connection with these
objects, to construct buildings and factories, and operate
machinery. In condemnation proceedings whereby the corporation took
water rights of a riparian owner, the state court found that the
purpose was in good faith to carry on the business of building and
operating the road, that the taking of all the water power was
necessary for that purpose, and that the purpose was public.
Held:
(1) That, in the absence of definite proof that a surplus would
result, this Court could not say that sale of surplus power was the
real object of the enterprise or anything more than a possible
incident, necessary to prevent waste, of the railway use.
(2) Even if sale of surplus power were likely to occur, the
taking, upon the case as made, would be justified by
Mt.
Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power
Co., 240 U. S. 30,
240 U. S.
32.
171 N.C. 314 affirmed.
The case is stated in the opinion.
Page 243 U. S. 568
MR. JUSTICE HOLMES delivered the opinion of the court.
This is a special proceeding to condemn the water rights
incident to land belonging to the plaintiffs in error upon a bow of
Green River. It has resulted in a judgment of condemnation subject
to the payment of $10,000. The petitioner, the defendant in error,
owns land on the side of the stream opposite to that of the
plaintiffs in error, the respondents, and on both sides of the
stream above and below that land. It proposes to cut off the bow by
a dam above, and a steel flume that reenters the river below that
land, all upon its own ground. The respondents in their answer set
up that the condemnation in this manner and for the purpose alleged
would be the taking of private property without due process of law,
in violation of the Fourteenth Amendment, and we assume that the
record discloses a technical right to come to this Court.
Minneapolis & St.Louis R. Co. v. Minnesota,
193 U. S. 53,
193 U. S. 62;
American Sugar Refining Co. v. Louisiana, 179 U. S.
89,
179 U. S. 91.
The decision of the supreme court in sustaining the condemnation
discusses only matters of state law, but the Chief Justice,
dissenting, intimated that the taking infringed the Constitution of
the United States. 171 N.C. 314.
The defendant in error, the Blue Ridge Interurban Railway
Company, seems to have been incorporated with power to build and
operate a street and interurban railway from Hendersonville through
Saluda to a point on Green River, and to extend its lines to any
other points not exceeding fifty miles from Saluda; also with power
to maintain a water power plant on Green River for the purpose of
generating electricity to be used in operating the railway, and
with all other powers granted by the laws of the state to
corporations of that character, including all rights of
condemnation and the right to sell and dispose of the surplus
electric power generated at its plant. It
Page 243 U. S. 569
has also a somewhat general authority to construct buildings and
factories, operate machinery, etc., but limited, as we understand
it, to acts expedient for the proper prosecution of the objects for
which the corporation was created.
This taking, according to the findings before us, was with
intent in good faith to carry on the public business authorized by
the charter -- that is, to build and operate a street and
interurban railway between points named. It is found further that
it was necessary to generate electric power on Green River in order
to operate the railway; that the present proceeding was for a
public use, and that, in order fully to develop the Blue Ridge
Company's water power on Green River for the above-mentioned
purposes, it was necessary to condemn the rights in question.
Subject to provisos that were held to have been satisfied, and that
are not in question here, a statute of 1907, as amended in 1913,
authorized street and interurban railways situated as the
petitioner was to condemn water power. The objection that is urged
against this statute and the charter as applied in the present case
is that taking the whole water power is unnecessary for the
purposes of the railway, that the plan is a covert device for
selling the greater part of the power to mills, that this last is a
private use, and that, the two objects being so intermingled, the
taking must fall.
We are asked to go behind the finding that the taking was for a
public use on the ground that the charter authorizes the sale of
surplus power, that the contemplated works will produce fifty
thousand horsepower, and that this, according to the evidence, is
much more than will be needed for the railway. But the surplus is a
matter of estimate, and no reason is shown for our not accepting
the findings below. We are in no way warranted in assuming that the
sale of surplus power, if there is any, is the real object of the
enterprise, or anything more than a
Page 243 U. S. 570
possible incident, necessary to prevent waste, of the primary
public use. Furthermore, if there are likely to be such sales,
nothing appears sufficient to take the case out of the scope of a
recent decision of this court.
Mt. Vernon-Woodberry Cotton Duck
Co. v. Alabama Interstate Power Co., 240 U. S.
30,
240 U. S.
32.
