Columbia W. P. Co. v. Columbia Electric &c. Co.

Citations

• 43 S.C. 154
• 20 S.E. 1002
• 1895 S.C. LEXIS 116

Syllabus

<p>1. State as Party in Equity and at Law. — The State of South Carolina, owning the property known as the Columbia Canal, transferred the same to trustees, reserving for the absolute use of the State five hundred horse power of water power, and authorized these trustees to make sale of this property subject to this reserved right. The trustees for value made such sale to plaintiff. Afterwards the State made lease of this five hundred horse power to defendant under a contract which required defendant to furnish the State Penitentiary with electric power for its purposes; and the defendant constructed its works and put up a supplemental steam plant on the adjoining land, the banks of the canal. Plaintiff then brought action against the defendant, to enjoin any use of this water power for purposes other than the supply of State institutions, and to recover damages for the erection of a steam plant on plaintiff’s property. The State, by the attorney general, interposed, and suggested these facts, but declined to be made a party, and defendant objected that the State was an indispensable party. The Circuit Judge held that the action could proceed without the State, that the use of the State’s water power was absolute, the contract between the defendant and State was valid, and the use of a steam plant was a proper adjunct, but that the canal banks were the property of plaintiff. Held, that the State was an indispensable party, so far as the case involved the equitable issue of the injunction, but not as to the legal issue of damages for the erection and use of the steam plant; and that these questions as to party were properly before the court, and the case on the equity side of the court must be dismissed.</p> <p>2. Reservation oe Water Power — Profit a Prendre. — -The right of the State to the free use of this five hundred horse power being “absolute,” was separable and distinct from ownership in other lands, and constituted a right of profit a prendre; and, therefore