Carolina-Tennessee Power Co. v. Hiawassee River Power Co.

Walker, J., after stating the case: The defendant has raised several objections to granting relief in this action by injunction, as there has been no violation of or obstruction to plaintiff’s rights. It is especially urged that by Revisal, sec. 1573, as amended by Public Laws 1907, sec. 74, it is provided, with reference to the power of condemnation by electric companies, that the power given by this section (1573) shall not be used to interfere with any mill or power plant actually in process of construction or in operation; and further, that water-powers, developed or undeveloped, with the necessary land adjacent thereto for their development, shall not be taken, and further, “That provisions in any special charters heretofore granted, in respect to the exercise of the right of eminent domain, which are in conflict herewith, are hereby repealed.” This statute was further amended by Public Laws 1907, ch. 302. But after these acts were passed, the legislative charter of the plaintiff was granted, which, if not expressly, then by necessary intendment, gives the power to condemn water-powers, especially those lying dormant; and where two statutes conflict, the later repeals the earlier one (leges posteriores priores ahrogant). 1 Cook on Corporations (7 Ed.), sec. 2; Clark and Marshall on Private Corporations (Ed. of 1903), sec. 127b, at p. 383, and Ed. of 1901, pp. 107 and 174; Lewis’s Sutherland on Statutory Constr., sec. 275; Wood v. Wellington, 30 N. Y., 218. It was insisted upon the argument that there should be express words of repeal in this act to suspend the operation of the general law, and that none such are found therein. But this is not necessary. Where a later special law, local or restricted in its operation, is positively repugnant to the former law, and not merely affirmative, cumulative, or auxiliary, it repeals the older law by implication pro tanto, to the extent of such repugnancy within the limits to which the latter applies. McGavick v. State, 30 N. J. L., 510; Township of Harrison v. Supervisors, 117 Mich., 215; R. R. v. Ely, 95 N. C., 77. “The well settled rule of construction, where contradictory laws come in question, is that the law general must yield to the law special.” Noy’s Maxims, 19. S. v. Clark, 25 N. J. L., 54. It was held in the following cases that the general law does not apply to a corporation organized under a special charter so far as the [256] provisions of the latter conflict with the former: Clarkson v. H. R. Railroad Co., 49 N. Y., 455; Le Feore v. Le Feore, 59 N. Y., 434; Hollis v. Drew, etc., Seminary, 95 N. Y., 166, 173; and onr cases virtually bold the same. Holloway v. R. R., 85 N. C., 452, 455; R. R. v. Ely, supra; S. v. Perkins, 141 N. C., 797. The subject is considered by the Chief Justice in the recent case of R. R. v. Ferguson, 169 N. C., 70, where the same principle as herein stated was approved. Justice Hoke, in Bramham v. City of Durham, ante, 196, goes fully into a discussion of the question as to conflicts between the general law and special charters, holding that where there is repugnance the provisions of the special charter will prevail. The Code, sec. 701, was amended and became section 2566 of the Revisal, being confined in its operation to railroads. This was done in 1905, before the plaintiff received its charter in 1909. The Revisal of 1905, sec. 1129, recognizes the rule of construction we have stated above, as to the operative force of a special charter. Power Co. v. Whitney, 150 N. C., 31, does not ajiply. It presented a very different question. There the plaintiff’s charter gave it a certain right of condemnation. This was expressly amended and limited by the general law at the same session, and afterwards its charter was reenacted, “as amended.” It was properly held that the charter of plaintiff was subject to the provisions of the general law. R. R. v. R. R., 106 N. C., 16, was also a different kind of case. It was held there that the general law and the special reference to the North Carolina Railroad Company’s charter were in pari materia, and both could have operation. Besides, the statutes have been amended since then, as we have shown above, and section 1159 of the Revisal allows full effect to the special charter. We cannot agree to the defendant’s construction of the xolaintiff’s charter, as we think it has a broader sweep than is there attributed to it. It is further contended by defendant that plaintiff could not condemn property for public purposes, because it was authorized to engage in private business; but we have held that position to be untenable, in Land Co. v. Traction Co., 162 N. C., 314. It was there said by the Chief Justice: “The plaintiff contends that the Piedmont Traction Company cannot exercise the power of eminent domain, because under its charter it is authorized to engage in private business in addition to its authority to operate a street railway, which is a gmsi-public business. We think the law is clearly stated thus in 15 Cyc., 579. The fact that the charter powers of the corporation, to which the power of eminent domain has been delegated, embrace both private purposes and public uses does not deprive it of the right of eminent domain in the promotion of the public uses.” McIntosh v. Superior Court, 56 Wash., 214; Power Co. v. Webb, 123 Tenn., 596. The company may purchase property for those uses [257] wbicb are not public, and not resort to condemnation. If it attempts to exceed those powers and franchises bestowed by its charter, or to exercise them in an unconstitutional or unwarranted manner, the State may restrain it by quo warranto or other proper proceeding. What should be the form of it, and how and by whom it may be invoked, matters not, as the remedy in some form is ample to prevent any excessive or illegal use of its chartered powers. Land Co. v. Traction Co., supra. It will be time enough for the defendant to complain when its legitimate interests are about to be invaded. The plaintiff has not sought, as yet, to condemn or appropriate any property for private uses. But we think the court erred in finding any facts additional to those found by the jury in their verdict. This is not a proceeding to condemn land, as contended by the plaintiff, but a civil action to enjoin the defendant from interfering with plaintiff’s previously acquired right and interest in certain water-powers and lands and easements appurtenant thereto, and was tried upon issues and oral testimony, before a jury. It was not a case in which the presiding judge could pass upon the evidence and find the facts or any material part of them. The whole matter was submitted to a jury, and it was their province to pass upon all the essential issues, and to find the ultimate facts upon which the right of the respective parties depended. We know of no precedent for trying a case like this at the final hearing otherwise than by a jury, upon issues submitted to them, where the evidence is oral, unless the parties waive such a trial under the statute, and agree that the judge may find the facts. This Court said, by Justice Holce, in Harvey v. R. R., 153 N. C., at p. 574: “Ever since the amendment to the Constitution conferring jurisdiction over ‘issues of fact and questions of fact to the same extent as exercised prior to the Constitution of 1868,’ the construction of the amendment, in several well considered cases, has been that it does not embrace or apply to common-law actions such as this, but only to suits which were exclusively cognizable in a court of equity, and to them only when the entire proof is written or documentary, and in all respects the same as it was when the court below passed upon it. Runnion v. Ramsay, 93 N. C., 411; Worthy v. Shields, 90 N. C., 92; State and City of Greensboro v. Scott, 84 N. C., 184; Foushee v. Pettyshall, 67 N. C., 453.” It was not regular procedure, or according to the course and practice of the court, that the facts should be found by a divided tribunal, that is, court and jury. We, therefore, must hold that the facts as found by the judge cannot be considered here. This was not the hearing of a motion for the continuance of a preliminary injunction to the final hearing, but the final hearing itself, and the judgment was necessarily one for a perpetual injunction, and the insertion of the clause reserving to the defendant the right to have reviewed or recalled “this perpetual injune [258] tion,” as it is called in tbe judgment, by motion or otherwise, did not change its character in this respect. It still remains a final judgment and a perpetual injunction. In other words, the court at the final hearing granted the relief prayed for in the comjDlaint. The defendant tendered certain issues, seven in number, which the court refused to submit, and in doing so there was no error, as a comparison of these issues with those submitted by the court will show that the latter substantially embrace every question or matter which is covered by the former, with one exception hereinafter mentioned. The first of defendant’s issues, leaving out the date, is the same as the first of those submitted by the court, and the third, fourth, fifth, and sixth of the defendant’s issues practically contain no matter which is not jmesented by those of the court, but are rather special inquiries as to evidentiary facts bearing upon them. The seventh of defendant’s issues is fully covered by the two issues submitted to the jury. The second issue of defendant will hereinafter be considered. Issues are sufficient when they submit to the jury proper inquiries as to all the essential matters or the determinative facts of the controversy. Zollicoffer v. Zollicoffer, 168 N. C., 326; Hatcher v. Dabbs, 133 N. C., 239. The form of the issues is of little or no consequence, if those which are submitted to the jury afford each party a fair chance to present his contention in the case, so far as it is pertinent to the controversy. Carr v. Alexander, 169 N. C., 665. Issues should be framed upon the pleadings and not upon the evidence. Goins v. Indian Training School, 169 N. C., 736. The first issue, though, was not definite enough in respect to the time when the plaintiff surveyed, stáked out, and adopted the locations for the sites of its dams, reservoirs, and public works on the Hiawassee River. This is a case of conflicting claims to these water rights and easements, and it was not sufficient to inquire if they had been acquired by the plaintiff prior to the bringing of this action. We are not required or permitted to examine the evidence to ascertain what the fact is, but it must appear in the issue itself as one which was found by the jury upon the evidence. The judgment is not based upon the evidence, but upon the findings of the jury from the evidence. Besides, we think there should be an issue as to whether a map of plaintiff’s location was filed in the office of the clerk of the Superior Court, and, if so, when was it done? This matter should not be left open for dispute-between the parties hereafter, but should be settled by a special finding of the jury in regard to it. Important rights depend upon it, and it becomes one of the vital questions of the case. It bears, as evidence, upon other questions, it is true, but has substantial weight and influence itself as a separate and independent fact. The defendant is here claiming the ownership of some of the properties to be affected [259] by plaintiff’s location, or an interest or right therein superior to the claim of the plaintiff, and while the payment of damages to the landowner may not be essential to the acquisition of a prior right or preferred location, between two rival claimants, the filing of the map is an act required to be performed by the claimant in connection with the location of his works and as a condition of his right to proceed further. If it is not required to be done for the purpose of determining the location and extent of plaintiff’s claim, it is so intimately connected with it and is regarded as of such importance in the general scheme of appropriation as to call for a separate consideration and finding by the jury. The general questions involved in this case were so thoroughly examined and considered in the carefully prepared opinion delivered by Justice Hoke for this Court in Street Ry. v. R. R., 142 N. C., 423, that little, if anything, need be said here upon the subject. It was there held that, in the absence of statutory regulations to the contrary, the prior right belongs to that company “which first defines and marks its route and adopts the same for its permanent location by authoritative corporate action,” citing pertinent authorities, and among them Lewis on Eminent Domain, sec. 305, where it is said: “Where the conflict arises out of rival locations over the same property by companies acting under general powers, that one is entitled to priority which is first in making a completed location over the property, and the relative dates of their organization or charters are immaterial.” And again, in the same section: “The making of a preliminary survey by an engineer of a railroad company, never reported to the company or acted upon, will not prevent another company from locating on the same line.” It appears, therefore, that what is a proper location, and what is authoritative corporate action in respect to it, so as to confer a prior or preferential right of occupancy or condemnation, are questions depending very much upon the facts as disclosed by the evidence, under instructions by the court as to their legal sufficiency for the purpose of vesting the prior right in either one or the other of the competitors for it. There are other exceptions, but not of sufficient importance to require any separate discussion of them. For the reasons stated, there was error committed at the trial, in the l’espects indicated, and for which a new trial is ordered. New trial. plaiNtife’s appeal. WalKek, J. The decision in the defendant’s appeal disposes also of the question in this appeal. As we have held that there should be a new trial, and as the judgment in favor of plaintiff has been set aside, there can be no amendment of it. The result in the other appeal really makes this appeal unnecessary, and it is dismissed accordingly. Appeal dismissed.