Messrs. Michael Schenck, C. P. Sanders, J. C. Martin, Thomas S. Rollins, and George H. Wright for plaintiffs in error.[ Hendersonville Light & Power Co v. Blue Ridge Interurban R Co. 243 U.S. 563 (1917) ]
[243 U.S. 563, 566] Messrs. Charles W. Tillett, Horace l. Bomar, William A. Smith, James E. Shipman, and Thomas C. Guthrie for defendant in error.
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 re-enters 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 14th Amendment, and we assume that the record discloses a technical right to come to this court. Minneapolis & St. L. R. Co. v. Minnesota, 193 U.S. 53, 62 , 48 S. L. ed. 614, 618, 24 Sup. Ct. Rep. 396; American Sugar Ref. Co. v. Louisiana, 179 U.S. 89, 91 , 45 S. L. ed. 102, 103, 21 Sup. Ct. Rep. 43. 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 stitution of the United States. 171 N. C. 314, 88 S. E. 245.
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 50 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 [243 U.S. 563, 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 horse-power, 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 [243 U.S. 563, 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, 32 , 60 S. L. ed. 507, 511, 36 Sup. Ct. Rep. 234.