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April 22, 1960


Appeal, No. 122, March T., 1960, from order of Court of Common Pleas of Allegheny County, Oct. T., 1958, No. 1994, in re approval of bond of The Peoples Natural Gas Company and surety under right of eminent domain to L. G. Curry and Marion L. Curry, his wife. Order reversed; reargument refused May 16, 1960.


William H. Eckert, with him Robert M. Jacob, Milton W. Lamproplos, Donald C. Winson, and Eckert, Seamans & Cherin, for appellant.

John A. Metz, Jr., with him Guy L. Warman, and Metz, Cook, Hanna & Kelly, for appellees.

Before Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Musmanno

[ 399 Pa. Page 227]


Some time prior to May, 1958, the Peoples Natural Gas Company (hereinafter to be referred to as the Gas Company) decided to lay a 24-inch gas pipe line from McKeesport in a southwardly direction toward the State of West Virginia. One of their engineers, Vincent G.Phelleps, was placed in charge of surveying and constructing the line from McKeesport to a place called Gibson Station, near Charleroi. Phelleps started surveying the line from the McKeesport end on May 12, 1958, and on May 15, 1958, arrived at a property belonging to Mr. and Mrs. L. G. Curry in Elizabeth Township, Allegheny County. Here he proceeded to mark

[ 399 Pa. Page 228]

    the course which was to be followed by those who were to actually lay down the pipe. He did this by driving stakes into the ground, at approximately 100-foot intervals, (with special stakes where the terrain might require it,) across the property. Having completed this operation, he proceeded to draw up a description of the line with measurements so that the Gas Company could, in the exercise of eminent domain, condemn the property (4.06 acres) to be occupied by its conduits, lay the pipe, and pay the property owners for the land taken.

In preparing the description, Engineer Phelleps made an error. In the area of the western limits of the Curry property, he encountered a dirt roadway bordered on the right by a row of trees. At the bottom of the Curry driveway, which debouched on to a thoroughfare called Constitution Boulevard, he found a stone which he assumed marked the northwestern extremity of the Curry property.

He was further led to believe that the driveway and the indicated stone marked the margin of the Curry property because on the eastern side of the driveway, the terrain was hilly, irregular and abounded with bushes, unaligned trees and rough growth, whereas, on the western side of the driveway, and in juxtaposition to the row of trees heretofore mentioned, the terrain dramatically changed to a smooth, well-kept lawn extending for a distance of some 30 feet to a handsome brick house, whose beautiful yard it might well have been. The brick house belonged to the Clyde Jones family which, in point of fact, however, owned only a strip 5.6-foot wide on the eastern side of the house. Although there is no explanation in the record about this, it is quite probable that the Joneses, rather than the Currys, maintained and cared for the lawn, even though they had no title to the land on which it flourished.

[ 399 Pa. Page 229]

Be that as it may, Phelleps made the mistake of accepting the above-identified stone as the northwestern extremity of the Curry property and wrote up his description accordingly. He reported to the Gas Company that the distance between the assumed northwestern end of the Curry property and the staked-out pipe line measured 232 feet.

The Gas Company filed a petition in the Court of Common Pleas of Allegheny County for approval of a bond to ensure payment to the Currys of the amount eventually to be paid for the appropriated easement and right of way.

However, after the petition and bond were duly approved, the mistake made by Phelleps came to light. Engineers for both the Gas Company and the Currys met on the land and agreed that the northwestern extremity of the Curry property was not the stone chosen by Phelleps but a point 25.3 feet further away. Thus, the distance between this correct point and the staked line was 257.3 feet instead of the 232 feet mentioned in the bond.

The Gas Company then went into court and filed a petition to amend its approved bond to show the correct description. The Currys opposed the petition.

The matter came on for hearing in the court of common pleas which dismissed the petition to amend, and the Gas Company appealed. It is the position of the Currys that the Gas Company must be held to the description contained in the unamended bond because when the bond was filed, title to the right of way described therein automatically passed to the Gas Company and it is therefore liable for the taking of the condemned 4.06 acres, as described. This being so, they urge a right to additional compensation for the land which they say would be taken under the amended description sought to be filed in the second proceedings.

[ 399 Pa. Page 230]

But all this assumes what is not true, namely, that two different pieces of land were intended to be condemned. It must be made quite clear at the threshold of discussion that the taking of only one strip of land was ever contemplated, that only one ditch was ever dug, that only one pipe line was ever laid over the Curry property, and that the Gas Company does not intend to lay any other pipe line over the Curry property. It must be equally emphasized that the one and only piece of land marked for condemnation was always the same terra firma marked out and staked on the property.

The Currys were never deceived with regard to the exact location of the pipe line. Not a single spadeful of earth was removed except where the stakes were driven along the route marked on the occasion of the one and only visit Phelleps made to the Curry property for the purpose of staking out the course of the pipe line.

The appellee landowners state that since the real northwest corner of their property is a point that is mathematically and geographically fixed, even though Phelleps assumed it to be 25.3 feet further east than it actually was, the right of way condemned in the bond was a right of way different from the one used for the pipeline. Thus, they argue in their brief that the Gas Company "wants to abandon the right of way taken by it and substitute in ...

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