Sears v. City of Akron, 246 U.S. 242 (1918)

Sears v. City of Akron

No. 105

Argued January 21, 22, 1918
Decided March 4, 1918
246 U.S. 242

APPEAL FROM THE DISTRICT COURT OF THE UNITED

STATES FOR THE NORTHERN DISTRICT OF OHIO

Syllabus

Mere incorporation and organization under the general laws of Ohio (Gen.Code, 1910, § 10128-10134), with power to construct and operate a hydroelectric power system at places designated in the certificate and to take water rights and riparian property for that purpose, does not imply a contract between the state and the company that the supply of water available shall not be diminished. Hence, a subsequent appropriation of the water by a city, acting under state authority, which involves no taking of property acquired by the company by purchase or condemnation under its charter, does not operate to impair the obligation of the charter.

Even if such a contract could be implied, an act of the legislature expressly authorizing such appropriation by the city should be treated as an exercise of the state’s power to amend the company’s charter, reserved by Art. XIII, § 2, of the Ohio Constitution, and as revoking or modifying the contract by subordinating the company’s right to the right of the city.

A hydroelectric company, organized under the general laws of Ohio with power of condemnation, adopted, through its board of directors, a plan of development involving the acquisition of the waters of a stream, with riparian land, and began certain condemnation proceedings, but never commenced construction work, and acquired none of the land until after the legislature had authorized a city to appropriate the water and the city, under an ordinance, had made the appropriation and practically constructed its works for using it. Held that whatever preference the company may have gained under the general laws of the state, as against rival corporations and municipalities, its right of appropriation, no property having been acquired under it, was subject to the state’s reserved power exerted by the act of the legislature, and that the appropriation for the city was not an unconstitutional taking of the company’s property. I

A state statute held not to violate Art. I, § 10, of the Constitution, or the Fourteenth Amendment, in authorizing a city to determine without hearing the necessity and extent of an appropriation of private property for its public purposes.

An ordinance for the creation of a waterworks system and supply, adopted by the City Council of Akron, to take effect September 10, 1912, pursuant to Ohio Gen.Code, 1910, §§ 3677-3697, was not repealed by the constitution adopted September 3, 1912, providing for a referendum in such cases, Art. VIII, § 5, since the constitution did not become effective until November 15, 1912, when the ordinance was a valid, existing law, and the fact that no action may have been taken under the ordinance is immaterial.

Where there is no direct taking under the power of eminent domain, a riparian owner complaining of the act of a city in damming and diverting a stream for a municipal water supply will be remitted to his action at law for damages unless the injury is clear and exceptional circumstances are present warranting resort to equity.

General allegation of fraud and insolvency held not to supply the absence of fact entitling plaintiff to equitable relief.

Affirmed.

The case is stated in the opinion.