The Chestatee Pyrites Company filed an equitable petition against the Cavenders Creek Gold Mining Company. The petition alleged that the plaintiff owned and possessed certain tracts of land through which ran the Chestatee river; that it had developed on said land, at great expense, a pyrites mine from which it was actually engaged in taking out ore; that it had purchased the land on both sides of a large water-power in the Chestatee river, a non-navigable stream, owned this water-power, and had also purchased the right to overflow the adjoining lands by the erection of a dam in this stream; that it had purchased this water-power for the purpose of developing and working its mine; that the Chestatee river is partially formed by four named streams which empty into it above the plaintiffs land and. augment the waters of the river which flow over plaintiff’s lands. The plaintiff also alleged that all of the water is essential to the proper operation of its mine, but that the defendant, a corporation chartered under the laws of North Carolina, had bought lands above the property of plaintiff, for the purpose of operating a gold mine, and had given notice that it would proceed under the Political Code, § 650 et seq., and Civil Code, § 4685, to condemn the water in the four tributary streams above mentioned and divert it from the river by means of ditches and canals to its mine, returning it to
1. 1 The right of eminent domain is a sovereign right of the State. It is inherent in every sovereignty, and existed before constitutions were adopted. It lies dormant until the legislature sets it in motion. As the legislature can not in every case supervise the condemnation, it may confer the power upon agencies. These agencies may be individuals or corporations, and the legislature-may even confer this power upon foreign corporations or individuals living in another State. The power thus conferred is always to be strictly construed, and will not be permitted to be exercised-except where it is affirmatively granted. Its grant is in derogation of common right, and is the exercise of one of the highest of the powers of sovereignty. Where, therefore, a private individual or corporation seeks to take the property of another under the power of eminent domain, affirmative authority for the exercise of the power must be shown. The power may be conferred either by a special act creating the corporation or by general acts relating to all corporations of designated classes. If a foreign corporation undertakes in this State to condemn private property, it must show legislative authority to do so. We have searched the authorities diligently to ascertain if any court has ever decided that a foreign corporation could exercise the right of eminent domain without legislative authority from the State wherein it proposes to exercise the right, and have been unable to find a single case so holding. All the courts seem to hold that this right of emi- -
2. The defendant in error claimed, however, that sections 650 — 657 of the Political Code are broad enough to include foreign corporations. We think that they should not be so construed. We think that the legislature can not be held to have granted the right of eminent domain, one of the highest of the sovereign rights of the State, to any and every corporation which may be created by any other State or country. These sections must be construed strictly. We can not believe that the legislature, by the use of the words any corporation, intended to confer part of the sovereignty of the State upon every corporation created in any State or country in the world which might be engaged in one of the businesses designated in these sections. As Judge Thompson says in the quotation above, “it will never’be presumed, in the absence of affirmative legislation, that the State delegates any part of its sovereignty to a foreign corporation. . . 1
Our code declares that “any . . corporation who may be actually engaged in the business of mining ” certain metals or minerals shall have the right to condemn private property. This language seems very broad, — broad enough to include both domestic and foreign corporations doing business of the designated kind in any State or country; but, as has been shown, statutes conferring the right of eminent domain must be construe® strictly, and courts will never assume, in the absence, of affirmative legislation, that it was intended to grant such powers to corporations over which the legislature had no control. Since the adoption of the Code of 1863, the legislature has reserved to itself the right to change or modify the charters of corporations of its creation, and to control the conduct of such corporations. It has no such powers with regard to a foreign corporation. In an act governing procedure or of a remedial nature, such words as are used in these code sections would probably be held to embrace all corporations, foreign and domestic; for such an act would receive a liberal construction. But acts granting powers in derogation of common right must always be construed strictly, and these words held not to include foreign corporations.
3. It was argued that the plaintiff had a complete remedy at law. After much reflection, we have concluded that the remedy at law was not as complete as the remedy in equity. The remedy at law pointed out by counsel for the defendant in error was for the plaintiff to go before the arbitrators and there make the questions raised by his petition in this case, and, in the event .of
Judgment reversed.