Chap. 424.—An ACT declaring the control of the Commonwealth over the -:vaters
of the State and providing for the development of the water power resources
in this State, and in furtherance thereof and incident thereto, among other
things, defining the “waters of the State,” conferring on public service cor-
porations engaged in the development of water power in this State certain
powers of eminent domain, providing for the exercise of such control by the
State through the agency of the State corporation commission and regulat-
ing the construction of dams and other structures included in such develop-
ment. [H B 290]

Approved March 24, 1928

1. Be it enacted by the general assembly of Virginia as follows:

Section 1. In order to conserve and utilize the otherwise wasted
energy from the water powers in this State, it is hereby declared
to be the policy of the State to control the waters of the State and
to encourage the utilization of the water resources in this State to
the greatest practicable extent. The term “waters of the State”
as used in this act shall mean, (a) any stream or that portion of
any stream in this State which prior to the passage of this act has
been declared navigable by any unrepealed statute of this State,
or (b) any stream or that portion of any stream in this State, the
bed of which is owned by the Commonwealth, or (c) those parts of
streams or other bodies of water in this State which either in their
natural or improved condition, notwithstanding interruptions be-
tween the navigable parts of such streams or waters by falls, shal-
lows, or rapids, compelling land carriage, are used or suitable for
use for the transportation of persons or property in interstate or
foreign commerce, including therein all such interrupting falls, shal-
lows, or rapids, and also any stream or part thereof in this State
other than those above mentioned in this subdivision (c) in which
the construction of any dam or works as authorized by this act
would affect the interests of interstate or foreign commerce. The
control and regulation on the part of the State of the development
of the waters of the State shall be paramount, and shall be exer-
cised through the agency of the State corporation commission, pro-
vided, however, nothing contained in this act shall deprive anv
riparian owner of any right which said owner may have, under exist-
ing law, except by due and further process of law upon the exer-
cise of eminent domain and upon the payment of just compensa-
tion for any such right.

Section 2. No person, firm, association or corporation, private
or municipal, proposing to construct or reconstruct any dam across
any of the waters of the State shall begin the construction or re-
construction of any such dam unless and until the provisions of this
act shall have been complied with, and every such dam, if and
when constructed or reconstructed, shall in every respect be sub-
ject to the provisions of this act and such other general laws of
the State as may be applicable thereto.

Section 3. The construction or reconstruction of any such dam
as 1S mentioned in the preceding section shall not be begun unless
and until the person, firm, association or corporation, private or
municipal, proposing to construct or reconstruct the same shall
first obtain a license so to do from the State corporation commission
of Virginia. The application for such license shall be filed with the
commission and in it all the essential facts shall be stated to enable
the commission to pass upon its merits. A copy of said applica-
tion shall also be filed by the applicant with the State commission
on conservation and development within ten days after fling said
application with the State corporation commission. [tach ap-
plication for license shall be accompanied by such maps, plans and
other information as may be necessary to give a clear and full
understanding of the proposed scheme of development, and ot
dams, generating stations or other major structures, if any, involved
therein.

Section 4. As soon as practicable after the fling with the com-
mission of any application for a license under the provisions ot this
act, the commission shall set a day for a public hearing upon said
application, and the applicant shall give notice to the public of said
application, in form to be prescribed or approved by the commis-
sion, by publication once in each week for four successive weeks
prior to said hearing in a newspaper or newspapers of general cir-
culation published in the city or county wherein the proposed con-
struction, or the greater part thereof, is to be made and any adjoin-
ing or connecting county or city affected and every other county
downstream from said development through which the stream runs
to its mouth, if there be such newspaper, and, if there be no such
newspaper, then by publishing the same in a newspaper ot general
circulation in such county or counties or cities affected. In said
notice the date fixed by the commission for the public hearing on
said application shall be stated. At such public hearing the ap-
plicant and any other interested person, firm, association or corpora-
tion shall be given an opportunity to present facts, evidence and
argument for and against the granting of said application.

Section 5. Before acting upon any application, the commission
shall weigh all the respective advantages and disadvantages from
the standpoint of the State as a whole and the people thereof and
shall make such investigation as may be appropriate as to the
effect of the proposed construction upon any cities, towns and
counties and upon the prospective development of other natural
resources and the property of others. If the commission shall be
of the opinion from all the evidence before it that, in pursuance of
the herein expressed policy of the State to encourage water power
development, the plans of the applicant provide for the greatest
practicable extent of utilization of the waters of the State for which
the application is made and that the applicant is financially able to
construct and operate the proposed dam and works and that the
general public interest will be promoted thereby, it shall grant the
license to construct and operate the proposed dam and works; but
if the commission be of the opinion, from the evidence before it,
that the prospective scheme of development is inadequate or waste-
ful or that the applicant is financially unable to construct and
operate the proposed dam and works, or that it is prejudicial to the
public interest, the commission may require the applicant to
modify the plans for said development in such manner as may be
specified by the commission or the commission may reject said
application. In granting any license the commission may include
in the grant thereof such terms and conditions with respect to the
character of construction, operation and maintenance of the pro-
posed dam and works as may be reasonably necessary in the
opinion of the commission in the interest of public satety; and in
granting every such license the commission shall determine what
provision, if any, shall be made by the licensee to prevent the un-
reasonable obstruction of then existing navigation or any unreason-
able interference with stream flow. In the case of a dam located
across any navigable waters of the United States, the owner shall
make such provision for navigation as is required by the secretary
of war of the United States. Notwithstanding any provision in
the existing law, no water power dam in excess of twenty feet in
height need provide for the passage of fish, and in all cases of
water power dams twenty feet or less in height the State corpora-
tion commission is vested with exclusive power to determine what
provision, if any, should be made for the passage of fish. No
priority of location or appropriation shall be recognized by the
commission in its consideration of any application for a license,
under this act except that in any case of an application prior to
January 1, 1930, for a license for the construction of any water
power development by any person, firm, association or corporation,
which, since January 1, 1923, and prior to January 1, 1928, has
expended as much as $50,000.00 in the investigation of, the survey
of, the acquisition of lands and/or rights for, and/or the construc-
tion of such water power development and except that in any case
of an application for a license for any reconstruction or enlarge-
ment of any existing development, then such person, firm, associa-
tion, corporation, or owner of said development shall be entitled to
priority over any other applicant for a license for the construction
of a development which would materially affect said proposed or
existing development, and every such applicant for a license under
this act shall give notice of his application within ten days after
filing of the same with the State corporation commission to every
other person, firm, association, or corporation owning any other
development which might be affected thereby, whose application
for a license under this act would be entitled to priority if such
application were filed. In case of conflict between two or more
applicants, the commission may grant the license to such applicant
as it may deem best in the light of the considerations herein speci-
fied.

Section 6. With respect to any license which may be granted,
the commission shall prescribe a time limit of not more than two
years after the granting of such license for the commencement of
the construction of the proposed dam and works of the applicant
and of not more than five years after the granting of such license
for the completion of said dam and works, either or both of which
initial time limits may be extended for good cause from time to
time in the discretion of the commission.

Section 6-a. Nothing herein contained shall give to any joint
or co-tenant owning an undivided interest in property for the parti-
tion of which a suit was pending on January 1, 1928, any right of
priority over any of his joint or co-tenants, or their assignees.

Section 7. All licenses granted under the provisions of this act
shall remain in effect for a period of fifty years from and after the
date of granting thereof. From and after the expiration of said
term of fifty years the licensee, its successors and assigns, shall
hold the property and rights acquired under the authority of this
act under an indeterminate license, which shall continue until said
property and rights have been purchased by the State, or until the
same have been acquired by the State by due process of law; pro-
vided that the right of the State to take over, maintain and operate
any development licensed under this act at any time by condemna-
tion proceedings, upon payment of just compensation, is hereby
expressly reserved.

In any valuation, for the purpose of rate making or for the pur-
pose of acquisition by the State by condemnation or by purchase
as above provided for, of the property included in any development
licensed under this act, there shall not be claimed by the licensee
or allowed by the State corporation commission any value for the
license granted by the State for said development, or for the right
of the licensee to utilize the natural resources owned by the State
and used by the licensee in connection with the construction,
maintenance and operation of said development, nor shall there be
claimed or allowed any appreciation on the intangible water power
value in excess of the fair intangible water power value at the time
of the granting of the license for the construction of said develop-
ment, said intangible water power value being distinguished from
the value of land or an interest in land, or the right to flood or
damage or otherwise utilize land, or to interfere with or to divert
water, or to otherwise damage a riparian owner or owners of other
real estate. The provisions contained in this paragraph are hereby
made an express condition of every license granted hereunder and
to the exercise by the licensee of the right of eminent domain in
this act conferred. |

Section 8. Nothing contained in this act shall be so construed
as to interfere with the exercise of lawful jurisdiction of the govern-
ment of the United States, or its duly constituted agencies, over the
waters of the State as herein defined.

Section 9. No voluntary transfer or assignment of any license
granted under this act shall be made to any transferee or assignee
unless he be financially able to carry out the project or development,
nor shall any such voluntary transfer or assignment be valid or of
any effect whatsoever unless the same shall be in writing and a
copy thereof be filed with, and approved by, the commission, pro-
vided that any mortgage or trust deed, or foreclosure under any
mortgage or deed of trust, or any judicial or tax sale, merger or
consolidation, or any sale of the greater part of the property of the
licensee in the State, shall not be deemed a voluntary transfer
within the meaning of this act. Any successor or assignee of the
rights of the licensee, whether by voluntary transfer, judicial sale,
foreclosure sale or otherwise, shall be subject to all of the obliga-
tions, liabilities and conditions incident to the said license to the
same extent as though such successor or assignee were the original
licensee.

Section 10. In event of violation by the licensee of any of the
terms of a license or for the purpose of remedying by injunction,
mandamus or other process any act of commission or omission by
the licensee in violation of any of the provisions of this act, or of
any lawful regulation or order promulgated in pursuance thereof,
the attorney general of this State shall, upon request of the com-
mission, institute proceedings in the circuit court of the city of
Richmond in the name of the Commonwealth at the relation of the
commission for the purpose of compelling the licensee to comply
with the provisions of the license or of this act, or for the purpose
of revoking the right of the licensee to proceed further under the
license, or similarly as to a specified portion or portions of the
development which is under license. The said court shall have
jurisdiction over all of the above mentioned proceedings and shall
be empowered to issue and execute all necessary process and to
make and enforce all writs, orders and decrees to compel comph-
ance with the lawful orders and regulations of the commission and
to compel the performance of any condition imposed under the pro-
visions of this act. If a decree is entered by the said court revok-
ing the right of the licensee to proceed further with the development
under license, or similarly with respect to a specified portion or
portions of the development under license, the court is empowered
to sell at public sale to the highest responsible bidder the property
and rights of said licensee used or useful in connection with such
development or such specified portion thereof, to distribute the
proceeds to the parties entitled thereto and to make and enforce
such further or other orders and decrees as equity and justice may
require. At such sale or sales the vendee shall succeed to the rights
and privileges of the licensee with respect to such development or
such specified portion thereof and shall perform all the duties of
the licensee under the license and assume all such outstanding
obligations and liabilities of the licensee as the court may deem
equitable in the premises.

Section 11. In addition to any right or power of eminent domain
which it may have under existing law, every public service corpo-
ration engaged in the development of water power in this State for
the production, sale and supply of hydro-electric power and energy
to the public shall be vested with the right of eminent domain to
the full extent requisite for the acquisition of all lands, property
and rights necessary for the purpose of the construction, enlarge-
ment, maintenance or operation of any dam, reservoir, power sta-
tion and/or other structures of any such water power development,
subject to the following provisions:

(a) Such corporation may, by the exercise of said right for said
purpose, acquire all necessary lands, property and rights of what-
soever nature, whether or not-such lands, property or rights have
been theretofore appropriated or devoted, or sought to be appro-
priated or devoted to public use, including, but not restricted to,
the lands, property and rights necessary for any storage, diversion,
regulation or detention, and/or interference with the flow of anv
water and for any waterway and including also, but not restricted
to, any lands, structures, property or rights owned, used or held by
or for public or private, religious, charitable, educational or ceme-
tery purposes; any dwelling houses and any public or private reads
and bridges, and any other property, public or private, when neces-
sary for said purpose; provided. however, that said right of eminent
domain under this section shall not be available against enisting
public-carrier railroads: and provided further that, in the event ot
the condemnation under this act of anv roads or bridges, the com-
missioners in assessing the compensation and damages therefor,
shall consider the cost of relocating and constructing such roads or
bridges upon other reasonable convenient locations, and the dam-
age, it any, to persons and corporations because of relocation and
construction. No such corporation shall impair the drinking water
supply of any city or town or acquire any municipal electric light
and power or water plant by virtue of any additional powers con-
ferred by this act; provided further that the provisions of this sec-
tion shall not be construed to authorize the acquisition by con-
demnation or otherwise of any streets or alleys or portions thereof
in incorporated cities or towns.

(b) When, in the operation of any dam, power station or other
structure of a water power development, any such public service
corporation interferes, to an extent beyond its common law riparian
rights, with the flow of water down stream from such structure
and by reason of such interference any property or riparian right,
or any part thereof or interest therein, is destroyed or damaged,
such corporation may exercise said right of eminent domain for the
purpose of acquiring such property, right or interest so destroyed
or of ascertaining and paying just compensation for any such dam-
age.

(c) In connection with the exercise of said right of eminent
domain over public and private cemeteries, such corporation shall
also have the right to acquire by condemnation proceedings other
lands to which to remove the bodies and monuments or other struc-
tures from such public or private cemeteries. All the rights of the
owners, including the State, in and to the lands in such cemeteries
shall pass to and vest in such corporation and the title to the lands
acquired for the removal of said cemeteries shall vest in the former
owners and such others as may have rights therein of said ceme-
teries so removed. However, before such corporation may flood or
otherwise utilize any such cemetery, it shall remove the bodies and
monuments or other structures to the lands acquired for such pur-
pose and re-inter the bodies and re-set the monuments, under the
direction and to the satisfaction of the court in which such con-
demnation proceedings are brought. If the parties in interest fail
to agree as to the location and area of the additional lands to be
acquired in which to re-inter the bodies and on which to re-set the
monuments and other structures, the same shall be determined by
said court.

(d) For the purpose of re-locating any railway, pipe line, wire
line, road or bridge occupying the area on which any such water
power development or enlargement thereof is to be located, such
corporation may acquire by the exercise of the right of eminent
domain, any needful additional lands or other property, whether
within or without the area upon which the said water power de-
velopment or enlargement thereof is to be located, and shall have
the right for such purpose and shall convey such lands or other
property or rights to the owner of such railway, pipe line, wire line,
road or bridge. ,

(e) In all cases of the exercise of such right of esninent domain
just compensation shall be paid to the owners and tenants of the
property taken or damaged, in the manner provided by law for all
property taken or damaged. The proceedings for this purpose shall
be in accordance with chapter one hundred and seventy-six of the
Code of Virginia, and other provisions of law. As to amy part of
the real estate sought to be taken for any of the purposes au-
thorized in this act, such corporation may describe in its application
for condemnation an estate or interest therein of a fee or less than
a fee and, upon payment therefor, such estate or interest as is
stated and described in such application shall vest in such corpora-
tion; but when less than a fee is taken, the commissioners in assess-
ing damages shall take into consideration the actual damage that
is done or that may be done to the fee by such taking, including
the use to which the property so taken will be put by such corpo-
ration. Provided, however, that nothing contained in section eleven
of this act shall deprive any owner of property of any right to re-
ceive just compensation and damages as provided by law, upon the
exercise of the right of eminent domain by any licensee under this
act. |

(f) Any public service corporation which shall exercise any of
the additional powers of eminent domain granted in this act and
not existing under the law in effect January 1, 1928, shall thereby
be conclusively deemed to have agreed, as a condition precedent
to the exercise of such powers, to be bound by all of the provisions
of this act.

Section 12. Any person, firm, association or corporation, pri-
vate or municipal, which on or before January 1, 1928, had con-
structed or acquired, and on said date or witHin two years prior
thereto was utilizing, a water power development or developments.
including the appurtenant pondage area or areas, located whollv or
in part in the waters of the State, or any person, firm, association
or corporation, private or municipal, which since January 1, 1923.
and prior to January 1, 1928, has expended a substantial sum. not
less than $10,000.00, to be increased to not less than $50,000 00 at
the time this act becomes effective, in the investigation of, the sur-
vev of, the acquisition of lands and/or rights for, and/or the con-
struction of any water power development or developments located
wholly or in part in the waters of the State shall, as shall also its
lessees, successors and assigns, have as to such development or
developments, and any reconstruction or enlargement thereor, all
the rights and powers conferred by this act, to the same extent
as if such person, firm, association or corporation were a licensee
under this act, without filing any application and obtaining a li-
cense hereunder, but no such corporation shall exercise any of the
additional powers of eminent domain conferred by this act and net
existing under the law in effect January 1, 1928, unless such corpo-
ration shall obtain a license under this act with respect to the
development affected; provided that unless such person, nrm, as-
sociation or corporation, private or municipal, begins construction
within two years and completes the construction for which said
survey has heen made within five years after this act becomes et-
fective, then as to said development the above provisions as to pro-
ceedings without a license and the provisions in this act as to
priority shall not apply ; and provided further, no such person, firm,
association or corporation, other than a public service corporation,
shall be vested with any rights and powers under section eleven
of this act. The commission shall, however, have full power to
require such changes, if any, in the dam or dams of such develop-
ment as may be reasonably necessary for the protection of life and
property.

Section 13. The commission shall have the power to make such
reasonable rules and regulations as may be necessary to administer
the provisions of this act and to require licensees hereunder to ren-
der to it from time to time such reports as may be reasonably neces-
sary. It shall have the power to employ expert engineers or other
experts or persons to examine and report upon projects as pro-
posed in applications for licenses, or the structures thereof, or upon
plans submitted after the issuance of licenses covering additional
details or succeeding stages of construction.

Section 14. From any order or decision of the commission un-
der this act, or from any order, judgment or decree of the circuit
court of the city of Richmond, as provided for in this act, any party
to said proceeding feeling aggrieved thereby shall have an appeal
of right to the supreme court of appeals within six months from
the date of such order or decision, and said court shall finally
decide all questions at issue. Except as herein provided, the man-
ner of taking an appeal from any order of the commission, or from
any order, judgment or decree of said court, shall be the same as
now provided by law generally for appeals to the supreme court of
appeals from an order or decision of said commission or an order,
judgment or decree of said court, as the case may be. In no case
appealed from the commission shall any new or additional evi-
dence be introduced in the appellate court, but the commission shall
-ertify to the appellate court all the facts upon which the action or
jecision appealed from was based and which may be essential for
he proper decision of the appeal, together with such of the evi-
lence introduced before or considered by the commission as may be
pecified or required to be certified by any party in interest, as well
is such other evidence so introduced or considered as the com-
nission may- deem proper. Whenever an appeal is taken there-
rom, the commission shall file with the record of the case and as a
art thereof a written opinion, including a statement of the reasons
pon which the order or decision appealed from was based. Such
pinion and statement shall be read and considered by the appellate
ourt before disposing of the appeal.

Section 15. The right to alter, amend or repeal this act is hereby
xpressly reserved; but no alteration, amendment or repeal shall,
rithout the consent of the licensee, affect any license theretofore
ranted under the provisions of this act, nor shall it affect the pro-
isions, terms and conditions of such license nor the rights of the
censee thereunder. The provisions, terms, and conditions of any
license may be altered or amended at any time by mutual consent
of the licensee and the commission, to the extent such alteration or
amendment is not in conflict with the then existing law of the
State. 2°

Section 16. If any section or part of a section of this act is
hereafter held by any court of competent jurisdiction to be uncen-
stitutional, such decision shall in no wise affect or render void the
remainder of this act.

Section 17, All acts or parts of acts inconsistent with this act
are hereby repealed.