Appeal, No. 134, March T., 1952, from order of Court of Common Pleas of Allegheny County, Oct. T., 1951, No. 2125, in re Acquisition of a Water System in White Oak Borough. Order affirmed.
Alexander J. Bielski, for appellant.
Harry H. Meizlik, City Solicitor, for appellee.
Before Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE BELL
This is an appeal from the Order of the Court of Common Pleas of Allegheny County which sustained preliminary objections filed by the City of McKeesport and dismissed a petition for the appointment of viewers. The following facts must be considered (for purposes of this appeal) as admitted:
White Oak Borough Authority was organized under the Municipality Authorities Act of May 2, 1945, P.L. 382 et seq., 53 PS 2900z-1 et seq. The Borough of White Oak thereafter delegated to the Authority certain specific powers including the acquisition, construction, improvement, maintenance, extension and operation of a water works and a water distribution system for all or any part or parts of the Borough of White Oak, including "the acquisition of such land for... fire hydrants... by the exercise of the right of eminent domain... as the Board of said Authority may authorize if necessary for said project, for a supply of water for domestic, commercial, industrial and other uses, and for fire protection, in all or any part or parts of said Township."
Since 1907 the City of McKeesport has been furnishing (indispensable) water to the inhabitants of the Borough of White Oak with its knowledge but without any express authority or consent and without ever obtaining a certificate of public convenience from the Public Utility Commission of the Commonwealth of Pennsylvania. White Oak Borough is outside the corporate limits of the City of McKeesport.
In 1940 the City of McKeesport constructed a sixinch water line on Henderson Avenue in White Oak
Borough and since that time has rendered water service to the residents along Henderson Avenue. This water line was constructed and water was furnished by the City of McKeesport without any permission from the municipal authorities of White Oak Borough and without any certificate of public convenience from the Public Utility Commission. Such certificate is clearly required under Sec. 2029 of the Public Utility Law of May 28, 1937.*fn*
On May 21, 1951, the Authority by Resolution condemned 1500 feet of the City's water line along Henderson Avenue for the purpose of providing fire protection; next day it filed its general bond as security for the taking and condemnation of the aforesaid property. On August 22, 1951, the Authority filed a petition for the appointment of viewers to assess damages resulting from the condemnation of the Henderson Avenue pipeline. Viewers were appointed and ...