Section 10-4-320 Rights, powers and authority.
Section 10-4-320
Rights, powers and authority.
All corporations organized under the general laws of this state, or heretofore under a special act of the Legislature, and all corporations organized under the laws of any other of the United States which have complied with the Constitution and laws of the State of Alabama as to foreign corporations and which by their charter have the right to manufacture, supply and sell to the public power produced by water as a motive force, shall, after acquiring by purchase, or otherwise than by condemnation, a dam site or power site comprising not less than one acre of land upon each and opposite sides of any watercourse or after acquiring by purchase, or otherwise than by condemnation, a dam site comprising not less than one acre of land upon one side of any watercourse and, where the dam site on the other side of such watercourse is owned or controlled by the United States, shall have acquired the permission of the United States to attach to or use the lock, dam or other property owned or controlled by the United States for an abutment site on the other side of such watercourse, in addition to other powers conferred by law, have the following rights, powers and authority:
(1) To acquire by condemnation the lands and rights necessary for the construction and operation of said dam and works connected therewith or useful thereto, either up or down stream therefrom, and in case of non-navigable streams, to construct and operate at said site, or other point up or down the stream therefrom, and across said stream, a dam, together with all works incident, necessary or related thereto, in connection therewith, to impound or divert water of any watercourse, or watercourses, of this state, to raise higher such dam and enlarge the works necessary, related or incident thereto and to construct other works necessary, incident or related thereto, either upstream or downstream therefrom, as may be required or deemed expedient by such corporation in the manufacture and supply of power produced by water as a motive force.
(2) To acquire by condemnation all lands, waters, interests, rights or easements in lands or waters likely to be flooded or damaged by impounding or diverting the water of any watercourse in this state or its tributaries, or necessary for the construction or operation of dams or power houses, or works necessary, incident or related thereto, or likely or liable to be flooded or damaged by the construction, operation or enlargement of the dams, or works incident, necessary or related thereto, or damaged or taken in the construction, operation or use of canals, tailraces or exit ways necessary, useful or convenient for the escape, conveyance or return of the water used in the operation of the works or power plant.
(3) To acquire by condemnation the necessary lands for substations and transmission lines, but shall have no right to condemn a private residence nor the outhouse, garden or orchard within the curtilage of a private residence, for a substation site or for rights-of-way for its transmission line or lines. Such corporation shall have no right to condemn lands, water or water rights in use for power purposes by another corporation upon the same watercourse, having similar powers and essential to its operations, or lands, water or water rights held by such other corporation for power purposes where the lands, water or rights in themselves and taken alone or in connection with other lands, water or rights owned by such other corporation can be made the reasonable basis of a water power development of at least 1,000 continuous horsepower; but may condemn lands, hydraulic structures, water or water rights held by such other corporation at any point upon the same watercourse, unless the lands, structures or rights in themselves, taken alone or in connection with other lands or rights owned by such other corporation, can be made the reasonable basis of a water power development of at least 500 continuous horsepower; and may condemn lands, hydraulic structures, water or water rights of such other corporation, at any point upon the same watercourse, in excess of such other corporation's actual facilities for using the same, independently of the actual or proposed works of the condemning party, for the manufacture of power by its plant as the same is already established at the time the condemnation proceeding is begun; provided, the plant of such other corporation has been in operation for five years or more preceding the commencement of the condemnation proceedings. Nor shall such corporation have the right to condemn the lands, hydraulic structures, water or water rights of any cotton factory, at any point upon the same watercourse, in actual and prior use by it for the operation of its plant; but may condemn the lands, hydraulic structures, water or water rights of such cotton factory in excess of what is actually in use, or may be used, at normal stages of the stream for the operation of its plant as already established at the time the condemnation proceeding is commenced. Such corporation may by condemnation acquire the right to flood grist mills and industries in conjunction therewith, together with lands and water rights appertaining thereto. In all cases just compensation shall first be paid to the owner in the manner provided by law for all property taken.
(4) To acquire by condemnation the right to flood public and private ferries and the approaches thereto, but said corporation in the event of acquiring said property by condemnation, shall relocate and place public ferries and the approaches thereto in a condition satisfactory to the county commissions of the counties in which said public ferries are located.
(5) To acquire by condemnation the right to flood private roads and shall have the right to flood public roads by paying to the county commissions of counties in which public roads are the cost of locating, laying out and opening other public roads in lieu of and to the same extent as the public roads flooded or intended to be flooded; but such corporation may appeal from the order of the county commission to the circuit court of the county within 30 days after the making of such order, by filing with the judge of probate of the county a written notice of appeal, and on such appeal the trial shall be de novo. Upon the payment of such corporation to the county commission of the sum fixed by such commission, together with the costs of the proceeding pending such appeal, and upon the execution of a bond in double the amount of such damages or amount so fixed, with good and sufficient sureties to pay such damages as the county may sustain, the corporation shall be entitled to flood the roads which are made the object of the proceeding; but such right shall not vest absolutely in such corporation until the final determination of the case and the payment or deposit in court of such damages or compensation as shall be adjudged.
(6) To acquire by condemnation ways and rights-of-way not exceeding a width of 100 feet for the total length of such rights-of-way upon which to erect tower, pole or wire lines for the manufacture, supply and sale of power produced by water as a motive force; but such corporation shall have no right without consent to construct and operate tower, pole and wire lines upon the right-of-way of any steam or electric railroad, telegraph or telephone company, except to cross the same, and such corporation shall have no right without consent to construct and operate tower, pole and wire lines upon the right-of-way of another corporation having the power to manufacture, supply and sell power, produced by water as a motive force, except to cross the same.
(7) To erect and operate tower, pole and wire lines across, along and on public roads, subject to the regulation of the county commissions of the counties in which said roads are located.
(8) To acquire by condemnation ways and rights-of-way, not exceeding a width of 100 feet, for the total length of such rights-of-way for the purpose of constructing earth, steam and electric roads for the transportation of material, equipment and supplies required or useful in the construction, operation and maintenance of the said dam and works incidental and necessary thereto.
(9) To clear and remove from rights-of-way and from lands likely and liable to be flooded all timber and other growth, and the right and authority to remove outside of said rights-of-way such timber as may injure or endanger by shading, falling or otherwise any of its works and for that purpose may acquire such timber by condemnation.
(10) Such corporations and public utility corporations shall have and exercise all the rights, powers and privileges now and hereafter conferred upon public utility corporations.
(Code 1907, §§3627-3633, 3635; Acts 1923, No. 92, p. 79; Code 1923, §§7193-7199, 7201; Code 1940, T. 10, §§178-184, 186.)