concurring: In tbe present case I have read tbe voluminous record, beard tbe able arguments of tbe defendants’ counsel, and read their carefully prepared brief, but am unable- to see any reversible error. Tbe case was first in this Court at Spring Term, 1916 (Carolina-Tennessee Power Co. v. Hiawassee River Power Co., 171 N. C., 248), on an appeal from Cline, J., at March-April Term, 1915, of Cherokee Superior Court. At tbat term tbe following issues were submitted to tbe jury:
“1. Did tbe plaintiff, prior-to 21 August, 1914, survey, stake out, and adopt tbe locations for its dams, reservoirs, and public works on the Hiawassee River, as alleged in tbe complaint and as indicated on tbe map offered in evidence? Answer: 'Yes.’
“2. If so, were tbe plaintiffs’ said locations lying, on 21 August, 1914, in a state of abandonment? Answer: 'No; they did not.’ ”
Tbe court below ex mero motu found additional facts, and granted an injunction substantially as requested in tbe prayer of tbe complaint. From this judgment tbe defendant appealed to this Court and was granted a new trial. A learned opinion was written by Walker, J., deciding all tbe main contentions for tbe plaintiff, but gave a new trial for certain important issues of fact to be decided by a jury for a proper determination of tbe case. Tbe cause again came on for bearing at March Term, 1917, of Cherokee County, before W. J. Adams, J., now a member of this Court. Tbe issues submitted to tbe jury, and their answers, are as follows:
*185“1. Were tbe locations for the dams, reservoirs, and public works claimed by the plaintiff surveyed and staked out on the Hiawassee Eiver in the year 1909, as alleged in the complaint and as indicated on the maps offered in evidence by plaintiff, marked 'Exhibit 7 and 7-A’ ? Answer: 'Yes’ (by consent).
“2. If so, did the plaintiff, in the year 1909 and thereafter, but before the organization of the defendant company in July, 1914, adopt said locations by authoritative corporate action, as alleged in the complaint ? Answer: 'Yes.’
“3. Did the plaintiff, prior to the commencement of this action on 21 August, 1914, abandon its said locations 'and proposed plans, as alleged in the answer? Answer: No.’
“4. Did the plaintiff file the maps or plats of its said locations in the office of the clerk of the Superior Court of Cherokee County on or about 21 June, 1911, as alleged in the complaint? Answer: ‘Yes.’
“5. Did the plaintiff, on or about 17 August, 1914, by authoritative corporate action, adopt the surveys and locations for its dams, reservoirs, and public works which had theretofore been made and marked out on the Hiawassee Eiver, as alleged in the complaint? Answer: ‘Yes’ (by consent).
“6. Were the lo,cations for the dams, reservoirs, and public works claimed by the defendant surveyed and staked out on the Hiawassee Eiver, as alleged in the answer? Answer: ‘Yes’ (by consent).
“7. If so, did the defendant thereafter, by authoritative corporate action, adopt said location; and if so, when? Answer: ‘No.’”
Upon the findings of the jury there was a judgment in favor of the plaintiff, and defendant appealed to this Court.
The judgment of the court below was affirmed in an opinion, comprising fifteen pages, covering every phase of the case, with numerous citations, not only from this Court, the United States Court, and legal text-books, but decisions from numerous States of the Union. The decision was exhaustive and learned, covering all the main contentions— remarkable for its clearness and logic, and is the leading case in this State on “water-powers.” The decision of these cases gave the plaintiff priority of right in locus 'in quo as the first company that defined, marked its route and adopted the same by authoritative corporate 'action. Power Co. v. Power Co., 175 N. C., 668.
Writ of error to Supreme. Court of United States was allowed 17 August, 1918. On 22 March, 1920, the Supreme Court of the United States dismissed writ of error, “dismissed for want of jurisdiction.”
From the opinion of Walicer, J., it would seem that the only question unsettled was the plaintiff’s condemning the land of defendant and' others to complete its hydro-electric enterprise. The present suits arise *186out of tbe condemnation proceedings. These suits were carefully beard before McElroy, J., a painstaking and conscientious judge, who, both sides agreed, could find tbe facts and make bis conclusion of law. He has found them against tbe defendant and in favor of tbe plaintiff, on evidence submitted, and from these findings and conclusions of law tbe defendant has again appealed to this Court. Tbe defendants’ counsel, in tbe oral argument, so earnestly insisted that there was reversible error that tbe Court carried tbe case over during tbe vacation months under advisari. Knowing tbe great importance of tbe case, I have gone thoroughly into every phase of tbe exceptions, and can find no material or prejudicial error.
“Verdicts and judgments are not to be set aside for harmless error, or for mere error and no more. To accomplish this result, it must be made to appear not only that tbe ruling complained of is erroneous, but also that it is material and prejudicial, amounting to a denial of some substantial right.” Wilson v. Suncrest Lumber Co., ante, 56, and cases there cited.