I -
Western
Morth
Mies
ma
Volume XXVI
Hendersonville, North Carolina, May 30, 1913
Number 9
WILL REST WITH SUPREME COURT
After Historic Battle of Legal Giants, Future of Million and Half
Dollar Development will Be Decided by State's Highest Tribunal.
Question,: Can the property of
the defendant company an its lo
cation No. 2, owned by it .and
sought to be condemned -by the
plaintiff, be developed ais a water
power, or used as such, in connec
tion, with, or in addition to pow
er actually in use by the .defend
ant company?
Answer: Yes.
Question,: Can the property of
he defendant company jn its lo
cation No. 8, owned by it and
sought to be condemned by the
plaintiff, be developed a.s a water
power, or used as such, in connec
tion with or in addition to pow
er actually in use by the 4ef end-
ant company?
Answer : No. . '
Question: What compensation
are the defendants entitled to
recover for the condemnation
by the plaintiff of their property
at location No. 2, 'as set out in
the petition?
Answer: $6,000.
Question: What compensation
are the defendants- entitled to
recover for the condemnation
by the plaintiff of their property
at location No.. 3, as Bet out Sn
the petition?
Answer: $300.
The above are the questions sub
mitted to the jury, and the an
swers thereto rendered by the jury,
in the consolidated power cases
which were fiercely contested in
the Superior Court last week.
There were ai 'good many questions
involved; but the four above men
tioned were the only ones which
were submitted toi the -jury. And
the answers even to these (ques
tions are mot final. A motion has
already been made jt,p have the
court set taside one of the answers.
And an (appeal can, and in all
probability will, be taken from
Judge Lyon's bindings land rulings
to the Supreme . court . And the
Supreme court may order a new
trial. And in that event the whole
fight will begin over again.
The words "defendant company,"
as used in the -above questions, re
fer to the Hendersonville Light
and Power Company, and the word
"plaintiff" refers to the. Blue Ridge
Interurban Railway company. But
really there were two -suits heard
together; and the plaintiff in one
was the defendant in the other.
One suit was the Blue Ridge Im
terurban Railway company vs. R.
M. Oates, the Hendersonville Light
and Power compa:ny and the A
merican Trust Company. This was
a petition to have certain lands
condemned. The other &uit -was R.
M. Oates land the Heindersonville
Light, and Power company vs the
Blue Ridge Interurban Railway
"Company. This Was a petition lor
an injunction: restraining the -Blue
Ridge Interurban Railway Co. from
proceeding with the conemnation.
It had been agreed that the two
suits should be consolidated amd
heard ait the jreeent term of the
Henderson County Superior Court.
Cases Consolidated
The suits were heard. They
were argued at length. A -week
was devoted to the hearing. But
no final (disposition was made. A
number of questions were tenta
tively answered by Judge Lyon,
tentatively, not finally. Four
questions, as above mentioned,
were submitted to, and at the last
moment answered by, the jury. A
motion was them made by the Blue
Ridge Interurban Railway .Com
pany that the court should (not-
withstanding the $ury'sajnswer to
the first of the questions above
meationed) find that the property
at location No. 2 is inot such, a
water power as cannot be con
demned. Decision on this and
other matters was postponed; and
a consent order was entered to the
following effect : .
Consent Order
That all motiiona in these consol
idated cases be miade in writing,
ies furnished to counsel on the
iter side, land arguments thereon
"" i Hi writing jcofpies or mo
tions to be served on opposing
counsel not later than June 15,
1913; briefs to be filed with the
judge :not later than July 1, 1913;
either side to be permitted to take
exceptions within ten days after
the judge files his findings, de
cision and judgement ; either side
to have 30 days i(aftier signing of
judgment) to serve case on appeal:;
opposing counsel to have 30 days
to serve exceptions or counter
case. Thus judgment will not be given
until some time after July 1. Thesn,
in all probability, the case wijl vbe
appealed to the Supreme iCourt ;
and the Suoreme Court onav either
I affirm the judgment or order a
maw trial.
Outline of Case
The main facts and tlhe main
contentions of each, side have al
ready been published; but, owing
to the enormous importance, of
the case (which will have a far
reaching effect on tlhe develop
ment of Henderson county's vast
natural resources), it is worth, while
to renst(ate the matter in simple
outline.
Certain well known capitalists
great expense been acquiring ti
tle to lands on Green River in or
snouuoue au jo asn eui o jep
have for a long time and' at a very
water power which has hitherto
been lying idle. These capitalists
have incorporated themselves as
the Blue Ridge Interurban Rail
way Company a corporation char
tered under the laws of North
Carolina. Their plans include the
development of electrical energy
an enormous scale, the construc
tion and operation of an electric
railwa y from Hendersonville to
Green River, and the iuse ojf eiec
tri!c powejr for various other im
portant purposes. For the full
consummation of their far-reaching
plans, they find it necessairy
to construct a giigamtic dam across
Green River below the mouth of
Big Hungary creek. This dam,
when constructed, will submerge a
large; area of land, most of which
land they have already bought and
part of which they are noW try
ing to acquire. Their charter
gives them explicitly the Tight to
condemin lands. This right is ialso
given to them by the laws of the
State) and particularly by Chapter
302 of then public Laws of 1907.
Proceeding under the rights thus
given, they petitioned for the ap-
pointmejnt of juries to condemn
certain lands. In one case ia jury
was actually appointed for this
purpose. In another case (R. M..
Oates and the Hendersonville Light
and Power Company) a temporary
oirder was obtained by the defend
ants restraining the Blue Ridge
Interurban Railway Company from
going any f uirthep with the con
demnation proceedings. The case
which wals heard in the Superior
Cou-rt last week was a consolida-
tion of two cases : one the Blue
Ridgei Interurban Railway Compa
ny's petition for condemnation of
certain lands belong to iR. M.vOates
and the Hendersonville Light land
Power Company ; and the other,
the petition of Gates iand the'L.
P. for an dlnj unction- restraining
the B. R. I. iR. Ooi. from going en
with the condemnation proceed
ings. In order to avoid the frequently
recurring use of long names bf cor
porations, we will calj the Blue
Ridge Intierurbaln Railway Compa
ny "the plaintiff," and we Will call
R. M. Oatiest and the Henderson-
ville Light and Power Compajny
"the defendant." .
Defendant's Claim
The defendant clalimed that the
construction of the dam ia pro
posed would submerge its (the de
fendant?) property alt the loca
tions known as No. 2 a(nd No. 3 on
Big Hungary Creek ; tha this pro
perty is waiter power capable of
being used and intended to be
used in connection .with the busi
ness now actually being carried on
vy a public service . corporation
now etngaged in serving fche pub
lic; ana that therefore under the
general law of the State, especially
as amended by the so-called 'Oates
law' ,of March , 1913, fcuch proper
ty is exempt from condemnation.
Subsidiary Matters
Various subsidiary matters were
brought in. The defendant charg
ed that the plaintiff did not in
good faith intemd to construct
a i- i 4 : l -..r
( a.uu opera wiie eiecxi ic lanwaji
as clalimed; and the plaintiff counter-charged
that the defendant
did not in good lfaith inteind to
develop additional water power as
claimejd and use it dn connection:
with its present business. The
judge tentatively answered these
questions, giving each side credit
for good faith.
Plaintiffs Reply
In reply to the defendant's
claim, that its property at loca
tions No. 2 anjd iNo. 8 was exempt
from condemnation, the plaintiff
claimed that the "Oates law," en
acted March 8, 1913, contained no
provision making it ajpply to bases
then pending ; and therefore could
not .apply to cases then pend
ing ; that the .petition for
condemnation was a case : then
neridin-ar. haviner been started (Feb-
ruary 22, 1913;, that therefore the
case must be decided under Chap
, , , .it -i
ter 302 o,f the Public Laws pf 1907
which, ait date when this suit was
started, was the law governing
such suits.
HISTORY OF CASE
From The Charlotte Observer.
Much interest throughout' western
North Carolina centers in the plans of
e i-Hige interurban Railway
Company with reference to its inde
pendent development Sf water-power
interests on the Green River, near
Hendersonville with its associated
plans for the construction of an elec
tric trolley line to connect Henderson-
iit; i ! iaiuaa ana wun extensions
proposed to Rutherfordton where con
nection Will be had with the Seaboard
and to Asheville where connection
ith the Southern will be available.
This is strictly an independent en- j
terprise and in no way associated or i
affiliated with the Southern Power
Company or any of its affiliated in
terests. During the past week there has been
going on in Hendersonville a battle of
opposing forces, the one representing
the Blue Ridge Interurban Railway
Company and the other the Hender
sonville Light and Power Company,
the jury returning a verdict Saturday
afternon in favor of the Blue Ridge
Company which it is claimed by those
interested will result in mope for wes
tern North Carolina than anything
that has transpired in a long time.
The question being tried by the
court and jury was the right of the
Blue Ridge Interurban Railway Com
pany to condemn certain water rights
owned by the Hendersonville Light &
Power company. The present plant
of the Hendersonville company was
not involved in any way in the litiga
tion, but the Interurban Company was
seeking the right to flood certain lands
and water rights on Big Hungry creek
above where it flows into Green River.
History of the Enterprise.
It seems that - Mr. John Law, the
head of the Saxon Mills of Spartan
burg, Mr. Walter Montgomery, head
of the Spartan Mills at the same place,
Mr. Horace Bomar, a prominent law
yer and financier, Mr. Alex White,
president of the Merchants' National
Bank, Mr. George Ladshaw, civil en
gineer, Mr. Joseph Lee, a prominent
business man, all of Spartanburg," and
Mr. William A. Law, vice president
and' chief executive officer of the First
National Bank of Philadelphia, have
for a long time been interested in the
water powers of western North Caroli
na. Most of these men have large in
terests in cotton mills in that section
and were desirous of getting cheaper
electric power to operate them. In
addition to that, they had been for a
long time interested in the building of
.an interurban railway between Spar
tanburg and Asheville, and several
yers ago had some surveys made for
this railway. They began to acquire
water rights for hydro-electric devel
opment and finally organized the Blue
Ridge Interurban Railway Company
whose immediate purpose Is the con
struction of a railway from Hender
sonville through Flat Rock and Saluda
to the site of the dam on Green River.
Magnitude of Enterprise.
The magnitude of the enterprise is
staggering. It is proposed to erect on
Green River, a short distance below
where Big Hungry Creek flows into it
a dam 160 feet high! It may be re
marked that the water flowing over
this dam wil have a fall equal to that
of Niagara Flls. The artificial lake
it is claimed will be the biggest thing
of the kind perhaps east of the Missis
sippi River, and will put Lake Toxa-
way far in the shade. The scenery
around the lake will be unsurpassed.
A Seaboard Cpnnection Proposed.
The railway company to be imme
diately constructed will run from Hen
dersonville to Saluda, and will have
its nose pointing in the direction of
Rutherfordton. It is said to be with
in the contemplation of the parties to
connect the Interurban with the Sea
board Air Line at Rutherfordton and
thus give a freight and passenger con
nection with this syste minto Hender
sonville and probably with Asheville.
This becomes interesting to Charlotte
people, as it would give a somewhat
easier route into the mountains from
this point.
Cheaper Power to be Furnished.
The power to be generated by this
plant will amount to 50,000 horse
power, and the surplus of the power
not needed for operating the Interur
ban system will be sold wherever
needed. Wires will be running to
Spartanburg and the cotton mills there
supplied with electricity, and all
through the mountains this mysterious
motive power will be conveyed to light
the cities and furnished to drive ma
chinery.
Obstacles in the Way.
The chief obstacle in the way of the
Interurban Company was the acquiring
! ui water nguis ioi me area, uoveitju
rights for the
by such an immense dam. The Hen
dersonville Light and Power Company,
which is owned by Mr. R. M. Oates,
formerly of Charlotte, had besides its
present water power plant two other
holdings below this plant on Hungry
Creek. The Interurban Railway made
an effort to buy these from the Hen
dersonville company but this company
contended that the plants were worth,
at least, $140,000. On the other hand,
the Interurban contended that neither
one of the riparian rights involved
were sufficient to constitute a wrater
power and that they were only worth
a few hundred dollars each. Not being
able to agree, condemnation proceed
ings were begun and the whole of last
week of the Hendersonville court was
spent in trying out before Judge Lyon
and a jury the question involved.
Representative Plummer Stewart Vin
dicated. ,
One extremely interesting feature
of the controversy arises out of the
fact that after the condemnation pro
ceedings were begun last February the
Hendersonville company went before
the Legislature and secured an amend
ment to. the existing law which it was
thought would prevent the Interurban
Company from acquiring any of the
holdings of the Hendersonville com
pany. Representative Plummer Stew
art of this county championed the
cause of the Interurban Company, be
fore the Legislature and claimed that
it was unfair to this company to un
dertake to change the law after the
condemnation proceedings had been
begun, and he further took the position
that Mr. Oates had no holdings that
could be developed with his' present
plant and that the Interurban company
should be allowed to proceed.
On the other hand, it was contended
before the Legislature that if the In
terurban Company was allowed to pro
ceed, it would ruih.the Hendersonville
company and would destroy property
to 'the value of nearly $300,000. Mr.
Stewart was snowed under and the act
was .passed by the jury seem to have
vindicated his position for by their
erdict rendered on Saturday afternoon
they found that the lower riparian
rights for which the Hendersonville
company demanded $55,000 were worth
$300, an dthat the upper rights for
which it demanded $75,000 were worth
$6,000. The jury further found that
the Hendersonville company had at
the lower place no power at all that
could be developed.
An Independent Company.
When the mattei was before the
Legislature the charge was made hat
the promoters of this compny weo
but members of a water power trust
of which it was charged that the
Southern Power Company was the
head. It developed on the trial of
this action at Hendersonville last week
that there was absolutely no ground
for this charge, and that the men who
are behind the orgnization are form
ing an entirely independent company
for the operation of an interurban sys
tem and the furnishing of electric
power. It was also shown in evidence
that the Kuhns of Pittsburg, Pa., a
branch of Kuhn, Loeb & Co., the great
trust magnates, are fighting the Blue
Ridge Interurban Railway Company.
Spartanburg Takes Notice.
Of especial interest to the people of
Spartanburg was the testimony of Mr.
Knox, the manager of the Spartanburg
Railway & Power Co., who testified
as a witness for" the Hendersonville
company. Mr. Knox's company owns
the street railways in Spartanburg and
is now the only company furnishing
light and power to that city. Itarould
not be hard to guess that he is desir
ous of keeping the Blue Ridge Inter
urban Railway Company out of Spar-
week Mr. Knox testified that his Spar
tanburg company had a contract with
the Kuhns of Pittsburg, Pa., that if
the latter could defeat the Interurban
company in the contest over some of
these riparian rights, then the Spar
tanburg company would buy out the
Kuhns. The proceedings against the
interest controlled by the Kuhns have
been moved into the Federal court
and will be heard by Judge Boyd at an
early date.
Contest for Water Powers.
The rivers of western North Caro
lina have been for ages dashing their
way toward the sea and beyond their
value in furnishing a little water to
the reparian owners they have been
considered almost valueless until with
in the last few years. Suddenly the
whole country seems to have waked
to a realization of tho fact that here
in the bosom of out mountains is to
be found power enough to run rail
roads and motors of all sorts without
number. Hence, the struggle to ob
tain possession of these water powers.
The courts and juries and everywhere
trying out the rights involved. ,
Goes to Supreme Court.
The case at Hendersonville will go
by appeal to the Supreme court of
North Carolina. Judge Lyon reserved
his final decision until the 1st day of
July, but as soon as he renders his
judgment the case will be passed up
to the Supreme court and the rights
of the parties will be there finally de
termined by the highest court of our
State.
Rotable Array of Attorneys.
There was a notable array of attor
neys appearing in the case. For the
petitioner, Blue Ridge Interurban
Railway Company, were Tillet &
fGuthie of Charlotte, Smith & Shipman
01 Hendersonville and Judge James S.
Manning of Raleigh, while appearing
for the Hendersonville Light & Power
Co., were Judge James H. Merrimon,
Britt & Toms of Asheville and Michael
Schenck and Staton & Rector of Hen
dersonville. This list of attorneys
will guarantee the truth of the state
ment that the case was bristling with
points from start to finish, and that
many knotty problems will be put up
to the Supreme court for its final solu
tion. SMITH'S SPEECH
Hon. W. A. Smith, who was one of
the attorneys for Blue Ridge Interur
ban Railway Co., spoke in part as fol
lows: There are just two things in this
case, the facts and the law. It is not
what the lawyers says, it is not the
argument of the lawyers, the only
thing the lawyer can do is to point out
the facts so you can make the argu
ment. It may not do any good but it
is the business of the lawyers, and
that is the way they make their living.
If you don't le me talk to you, I could
not make a living, so you have got to
help me make my living. .
Let's see if we can get out of the
brush. I want to say something and
mean every word I say. I don't want
to speak in disparagement of iny as
sociates or brother lawyers; I don't
want to speak in disparagement of
Mr. Tillett and Judge Manning, but I
want to tell you if 'you want the most
plausible, most adroit, carefulest,
smartest lawyer in the State of North
Carolina to try a case, don't get Judge
Manning, don't get Mr. Tillett, for
heaven's sake don't get Bill Smith, but
get Judge Jas. H. Merrimon. He can
come nearer making white look black,
he can come nearer converting water
into blood, he is the most adroit, keen,
discriminating lawyer I ever saw in
my life. He can take anything in the
world and talk about it and make it
so absolutely plausible, apparently?
that you believe it. No matter what
,R. M. Oates has had, he has been smart
enough to get the best lawyer he
he could get.
They have come to you and said that
we were playing what? A false game,
an insincere game, that we were not
true about the matter, and then to
reduce it down from what they say we
are not honest. Does it matter wheth
er this Blue Ridge Interurban Ry. Co.
is honest or dishonest. What have
you got to do with that? It doesn't
matter with you. The issue is not
"Are we proceeding in good faith?"
That was left to His Honor.
There is a gneat big argument made
that the Blue Ridge Interurban Ry. Co.
had not paid anything for this stock.
That is smart. If the Blue Ridge In
terurban Ry. Co. had gotten over
$200,000 worth of property without
paying anything they are smart. The
question is have they got it? Mr. Law,
whose character stands, and whose
character you would say was good,
swears that they have invested over
$200,000, but they say the Blue Ridge
Interurban Ry. Co. didn't pay any
thing for it. The answer to that is
that the Blue Ridge Interurban Ry. Co.
paid for it in stock. What is stock.
Who owns the First Bank and Trust
Co. here? The stockholders. I want
to tell you I have a little stock in that
and I never paid one cent for It.
There is not a stockholder in that
bank that paid one cent for the stock
in the new bank organized, the First
Banknd Trust Co. It has got $125.-
000 capital and a great big surplus
and lots of money. They have not
paid one cent for it. How is that V It
has existed- but a little while. It was
the first National Bank and the Wan
teska Trust & Banking Co., the two
(Oenltinued on Vatge 6)
Change of Venue
I will state to a VI wo .are ior
terested in the Henderson County
Singing Convention, that it will be
held at the Auditorium instead of
Laurel Park.
The officers request that all
classes that can conveniently do
so will bring banners 1 with th
name of their class printed on 4t.
J. F. 5tepp, Prea
.
Turtle and Carp
A monster turtle the largest ev
er seen here was killed by W". tM.
Hill and Thomas Williams, tjhis
week, jn Lyda's pond, just, toutside
the ,city. ' - -
The turtle's shell measured 34
inches and the big Xellow weigh
ed 34 pounds. A load of buckshot
did the work. The shell was too
large for a half bushel basket; v.
AbouitJ the biggest carp ever
caught! here was captured recent
ly by Mr Hill in S. J. Co,llins' pond
on the Clear Creek road. Mr. Carp
tipped the scales at 17 pounds
wThich is some fish you must ,adr
mit.
Wafer
On account of the heavy rains
last Friday the announced clean
ing pi the city's ' reservoir was
postponed until Monday, June 2.
The .watjer will be cut. off from. 2
to 5 in the afternoon.
Early Closing
Effective Monday, June 2, all the
merchants c,f the town will close
their stores at liZO.
For the Farmers
In .stfcdordance with the suggesi-
tiijon made by The Times last week,
shu qm eniAtDOBJapuan jayBaif) oq.j
has appointed a committee 'to ap
pear before the county commis
sioners Monday With an 'attractive
offer in (regard to the farmers' co
operative demonstration work.
To Beautify City
A .sincere effort to beautify the
town is being made at the depot.
The ugly, red bank back of Jhe
passenger depot is being sodded,
the word "Hendersonville" is set
in the grass in .great stone fetters.
Flower beds ait the foot of the
bank will make the improvement
still more attractive. Of course,
t he Woman's Auxiliary of the city
Club is responsible for the work.
Childrens Chapter
All HendersonviV-e girls and boys
under sixteen years of age, who
are eligible, are invited to the
home of Mrs. Michael Schenck,
Friday atftennoon, June 6, at 4 o'-
clock for the purpose of organize
ing si Children's Chapter of the
Confederacy. There are no initia
tion .fees or .yearly dues connected
with this organization. Each
cihild pays 10c ior certificate of
membership. The jchildren will be
under the leadership of some ca
pable lady appointed by the Mar-
Jgtaret Davis Hayes Chapter, and
will meet as often as their leader
deems (advisable..
The object of this organization
is .to teach the children Confeder
ate history, story a nd song ; to
teach, .them to revere the mames
and deeds oi those who fought,
bled .and died for their beloved
homeland; to teach them to ad
mire and love our beautiful South
land a,nd her valient. men and wo
meo. Let every mother who has an e-
ligible child send him or her ,tp
Mrs. .Slhenck's on tjhe above men-
tioned date ajnd hour.
Ought to Grow Rich!
Ain agricultural county, with ,a
cliniaJte adapted to the production
of ail kinds of .grains and vegeta
bles, and with a practically .uni-'
.limited home home marketj or all
it cam raise, such, a poiuwty. ought
to grow, rich. , -
' Mra. Charles French ToaHs and
children are tie giuests of C4.pt.
'and Mrs. M. C Tpvoa x '
I, fj
i i
-
.