Nolan v. Central Georgia Power Co.

Holden, T.

The writer can not agree to the ruling made in the 1st headnote and 1st division of the opinion in this case, but must dissent therefrom. Whether the,body of the act in question is such as to give the right of condemnation is a question not neeessary to be decided, in the opinion of the writer, for the reason that the title of the act does not authorize legislation- giving the right of condemnation of an easement to flow-back water and thereby destroy the water-power of another. The title of the act in question is as follows: “An act to authorize corporations or individuals owning or controlling any water-power in this State, or location for steam plant hereinafter mentioned, and operating or constructing, or preparing to construct thereon, a plant or works for generating electricity by water or steam-power, to be used for the purpose of lighting towns or cities, or supplying motive power to railroads or street-car lines, or supplying light, heat, or power to the public, to purchase, lease, or condemn Tights of way or other easements necessary for such purposes upon the lands of others upon first paying just compensation to the owners of the land to be affected.” In the case of Oconee Electric Light &c. Co. v. Carter, 111 Ga. 106, in construing the act in question, the following rulings were made in the headnotes: “The act of December 7, 1897 (Acts 1897, p. 68), confers the power to condemn the property of others upon such corporations or individuals only as own or control any water-power in this State, or location for steam plant. It confers no power to condemn a water-power, but only to condemn rights of way or other easements upon the lands of others in order to run lines of wire, maintain dams, etc., or for other uses necessary to transmit electricity for the purpose of lighting towns or cities, or supplying motive power to railroads or street-car lines or heat or power to the public. It confers no power to condemn an undivided interest or easement in a water-power the remainder *212of -which is owned by the electric-light corporation which is seeking to condemn. There is no general law giving electric-light companies power to condemn the private property of others.” In 8 Words & Phrases, 7414-, a water-power is thus defined: “The' water-power to which a riparian owner, is entitled consists of the fall in the stream when in its natural state as it passes through his land or along the boundary of it; or, in other words, it consists of the difference of level between the surface where the stream first touches his land and surface where it" leaves it. This natural power is as much the subject of property as is the land itself of which it is an incident.” Under the title of the act, above set out, legislation could not be had giving the right of condemnation to a corporation or an individual who merely owned or controlled a water-power, or location for a steam plant. Such corporation must not only own or control such water-power, or location for a steam plant, but must be operating or constructing, or preparing to ■construct thereon a plant or works for generating electricity by water or steam-power. Such corporation or person must not only be one of the kind above named, but the electricity generated must be “used for the purpose of lighting towns or cities, or supplying motive power to railroads or street-car lines, or supplying light, heat, or power to the public.” Hence it will be seen that the words in the title of the act, through the word “public,” inclusive, are descriptive of the corporation or individual who is to have the right of condemnation. Such corporation or.individual, under the title of the act, is to have the right to “condemn rights of way or other easements'necessary for such purposes.” The purposes referred to relate only to the ones named in the title of the act, to wit, the purposes of “lighting towns or cities, or supplying motive power to railroads or street-car lines, or supplying light, heat, or power to the public.” Legislation to condemn right's of way or other easements for any other purposes would not be authorized under the title of this act. The purpose for which the defendants in error contend that the body of the act permits them to. condemn rights of way, or other easements, is that of flowing-back water over the water-power of another. Under the title of this act, legislation was not authorized except to condemn rights of way or other easements when necessary for the purpose of using the product of the.power owned or controlled. No legislation was author*213ized giving tbe power to condemn rights of way, or -other easements, for the purpose of acquiring additional water-power. The-legislation which the defendánt in error contends was had under the title of this act was to give the owner of a water-power the right to take the water-power of another and use the product thereof for his own benefit. The writer can not agree that the title of the act authorized any such legislation, and must therefore dissent from the ruling above referred to and from the judgment of affirmance in this case. I am authorized to state that Justice Atkinson concurs with the writer in this dissent and in the views above set forth.