The opinion of the court was delivered by: MCVICAR
This proceeding is under the Tucker Act, 28 U.S.C.A. § 41(20). It is for the purpose of determining the amount of damages, if any, due the plaintiff from the United States by reason of the alleged taking of plaintiff's property resulting from the authorized elevation by the United States of water in Tionesta Dam. The Court makes the following findings of fact and conclusions of law:
1. The Kellettville Gas Company was incorporated April 4, 1902, under the Pennsylvania Act of May 29, 1885, P.L. 29 and its supplements, 15 P.S.Pa. § 1981 et seq. Under its charter it was granted the nonexclusive franchise for the term of ninety-nine years to sell natural gas to the public in the village of Kellettville, in Kingsley Township, Forest County, Pennsylvania.
2. The privilege of selling gas was exercised under authority of a certificate of public convenience issued by the Public Utility Commission of Pennsylvania.
3. In the spring of 1938, the company served between eighty and ninety customers in Kellettville.
4. On March 22, 1943, the company applied for, and on July 1, 1943, the Public Utility Commission of Pennsylvania granted, permission to suspend or abandon the service of the company in Kellettville.
5. In 1938, for flood control purposes, the United States commenced construction of a dam in Tionesta Creek, approximately seventeen miles downstream from Kellettville. The dam was completed about the end of 1940. The maximum water level was fixed at 1170 feet above mean sea level.
6. To provide a reservoir for the storage of water behind the dam, the United States acquired, by purchase or condemnation, the fee simple title or flowage easements over lands behind the dam lying below the elevation of 1170 feet above mean sea level.
7. Up to the time of trial the dam had never been filled above an elevation of 1147 feet.
8. All pipes and other properties of the plaintiff have always been situated above the elevation of 1147 feet.
9. The lands acquired by the United States included a large part of Kellettville and the land of many customers of the company.
10. In both the condemnation proceedings and the conveyance by voluntary vendors, the rights of The Kellettville Gas Company were expressly excluded and left unimpaired.