APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO.
MR. JUSTICE BRANDEIS delivered the opinion of the court.
Akron, Ohio, lies on Little Cuyahoga River a short distance above its confluence with the Big Cuyahoga. In May, 1911, the legislature of Ohio granted to the city, by special act "the right to divert and use forever" for
the purposes of its water supply "the Tuscarawas river, the big Cuyahoga and little Cuyahoga rivers, and the tributaries thereto, now wholly or partly owned or controlled by the state."*fn1 The city already possessed, under the general laws of Ohio, power to appropriate for this purpose, by condemnation proceedings, the property of any private corporation.*fn2 Acting specifically in exercise of the power conferred by the special act and of every other power thereunto enabling, the city, by resolution of its council, passed May 27, 1912, declared its intention to appropriate all the waters, above a point fixed, of the Cuyahoga River and tributaries; and by an ordinance, passed August 26, 1912, it appropriated the same, directed its solicitor to apply to the courts to assess the compensation to be paid, and provided for the payment of "the costs and expenses of said appropriation" out of an issue of bonds theretofore authorized. The city then constructed
a dam and reservoir at the place specified and announced its intention of diverting the water before or by August 1, 1915.
On July 24, 1915, John H. Sears, a citizen of New York, filed in the Federal District Court for the Northern District of Ohio this suit, praying that the further construction of dam and reservoir and the diversion of the water of the river be enjoined, and alleged, in substance, the following facts: The Cuyahoga River Power Company, a hydro-electric corporation, was organized under the general laws of Ohio,*fn1a in 1908. The character of the company's enterprise is described in Cuyahoga River Power Co. v. Northern Realty Co., 244 U.S. 300; and its possible rights were considered in Cuyahoga River Power Co. v. Akron, 240 U.S. 462. On July 15, 1915, the company delivered
to him as trustee a deed of trust of all its property to secure an issue of $150,000 of bonds.The property rights or interests which it is alleged the city was about to appropriate and for which it had not paid and proposed not to pay, arose from these transactions of the company:
It caused to be made and had, on or about June 3, 1908, adopted by resolution of its board of directors, surveys, maps and plans known as the "Roberts-Abbot Plan." Later it caused to be made and, about April 23, 1909, adopted by resolution of its board of directors, supplemental surveys, maps and a plan, known as the "Von Schon Plan," together with description of the several parcels of land required for carrying it out. The first plan provided for development, on the Big Cuyahoga, above the confluence of the Big and Little Cuyahoga rivers, within the limits of the location and plan of development set forth in its certificate of incorporation; and the papers also described the various parcels of land which the company would require for the purpose. The supplemental plan called for an extensive development including most of the rivers of northeastern Ohio, and provided, among other things, for a dam on the Big Cuyahoga above that of the city. It was confessedly beyond the powers conferred by the original certificate of incorporation. That certificate was not amended to include the necessary additional powers until after the passage of the Act of 1911. No public record or filing was made of either of those plans; and the law of Ohio makes no provision for such filing or for any record except that involved in condemnation proceedings. No condemnation proceeding was taken except that instituted June 5, 1908, under the original plan. It does not appear that any property was acquired under these proceedings. Shortly before the commencement of this suit, the company acquired, at a point some distance below the city's dam, a small parcel of
land, which however, extended only to high-water mark. It also acquired, at another place below defendant's dam from another riparian owner, a contract for a portion of the river bed and the right to regulate, as to this land, the flow of the river; and acquired options for certain other properties. But the company ...