199 Pa. Super. 25 | Pa. Super. Ct. | 1962
Opinion by
On July 11, 1961, the West Penn Power Company applied to the Pennsylvania Public Utility Commission for approval of the exercise of the right of eminent domain in acquiring a right-of-way across property of Earl W. Simmons and Irene H. Simmons, his wife, for the construction, operation and maintenance of an electric transmission line. Testimony was taken at a hearing on September 25, 1961, and oral argument was heard on January 23, 1962. By its order dated March 5, 1962, the Commission denied the application. This appeal by the Company followed, and we permitted the property owners to become intervening appellees.
The question before us involves an interpretation of the Act of May 21, 1921, P. L. 1057, 15 P.S. 1182, which grants to corporations supplying light, heat and power by means of electricity the right to appropriate property for the transmission or distribution thereof, subject to certain limitations. The statutory provision which gives rise to the issue presented by this appeal, reads as follows: “And provided further, That before any such company shall exercise the power conferred by this subsection, the Public Service [Utility] Commission of the Commonwealth of Pennsylvania, upon application of such company, shall have found and determined, after public hearing, that the service to be furnished by said company through the exercise of said power is necessary or proper for the service, accommodation, convenience, or safety of the public”.
The intervenors own a farm property of approximately eighty-nine acres in Peters Township, Washington County. The Company presently has in operation a 132 kv transmission line, known as the Windsor-Courtney-Charleroi line, which passes through the
The Simmons property is operated as a specialized fruit and vegetable farm, intensively cultivated by contours to control erosion, with scientific application of fertilizers to produce high soil fertility, and by an extensive irrigation system. The water for irrigation is supplied from two reservoirs on the Simmons property, and another on a leased farm, by means of a portable pumping unit and by portable 30-foot aluminum pipe sections which can be readily coupled together to provide a system of supply lines and laterals to irrigate areas under cultivation as needed. The testimony discloses that unavoidable breakage of pipe couplings occurs under certain temperature conditions and, in such event, the heavy operating pressure may project water as high as 100 feet into the air and, in some instances, propel sections of pipe to a height of 40 feet. Prank L. Wilson, an expert witness, testified that, if a stream of water or section of pipe would be propelled into the air and touch the 132 kv transmission conductors, any
According to the record the Company surveyed an adjoining property, known as the Patterson farm, and the plan of a proposed right-of-way thereon was discussed with the property owner. However, a price for the right-of-way could not be agreed upon. It appears that the Patterson farm is not under cultivation, but that location of the proposed line on that property would lengthen the line approximately 700 feet and would necessitate the erection of an additional steel tower. The Company’s survey supervisor testified that the estimated cost of such relocation was $9,000.00.
The Commission found that the service to be furnished by the new line was necessary and proper in the public interest, and that the Company’s proposed acquisition of a portion of the Simmons property was the result of orderly planning designed to provide the most economical and practical route. However, the Commission concluded “that applicant’s proposed right-of-way location across the Simmons property will create a situation involving hazard to the public and, in view of the specialized nature of the property owners’ farm operation, the selection of the route, as proposed herein by applicant, constitutes an unreasonable disregard of the property owners’ rights under the law”.
Appellant first contends that, having found that the service to be furnished was necessary and proper in the public interest, the Commission had no alternative other than to approve the route selected. This argu
Appellant’s second contention is that the Commission erred in finding that the rights of the property owners had been unreasonably disregarded. This was a factual question for the Commission to determine. Appellant cites Stone v. Pa. P. U. C., 192 Pa. Superior Ct. 573, 162 A. 2d 18; Laird v. Pa. P. U. C., 183 Pa. Superior Ct. 457, 133 A. 2d 579; and Biddle v. P. S. C., supra, 90 Pa. Superior Ct. 570. However, the Commission did not find in those cases, as it did find, in the instant case, that the rights of the property owners had been unreasonably disregarded. We have previously set forth the evidence before the Commission. This record
Appellant’s third and final contention is that the Commission also erred in finding that the proposed right-of-way will create a situation involving hazard to the public. In Lower Chichester Township v. Pa. P. U. C., 180 Pa. Superior Ct. 503, 119 A. 2d 674, we made the following pertinent statement: “The public for whose conveniences, accommodation, safety, and protection the Public Utility Law is concerned does not consist solely of persons served by the utility, but also includes persons generally who may come into contact with the utility’s facilities”. We cannot agree with appellant’s argument that public safety is not involved in the instant case. There is an abundance of testimony in the present record to support the conclusion that persons lawfully using the Simmons property would constantly be exposed to the hazard created by the proposed line. We are of the opinion that such persons are members of the public within the meaning of the statute.
In conclusion, it is our view that, in denying the instant application, the Commission acted in conformity with its powers and duties under the statute. We do not find error of law, lack of evidence, or violation of constitutional rights. See Duquesne Light Co. v. Pa. P. U. C., 176 Pa. Superior Ct. 568, 107 A. 2d 745.
Order affirmed.