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September 13, 1962


Appeal, No. 225, Oct. T., 1962, from order of Pennsylvania Public Utility Commission, Application Docket No. A-88280, in case of West Penn Power Company v. Pennsylvania Public Utility Commission. Order affirmed.


James F. Boyer, with him Charles L. McCormick, for appellant.

Anthony L. Marino, Assistant Counsel, with him Joseph I. Lewis, Chief Counsel, for Pennsylvania Public Utility Commission, appellee.

Adolph L. Zeman, with him Robert L. Zeman, and Zeman & Zeman, for intervening appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 199 Pa. Super. Page 28]


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

[ 199 Pa. Super. Page 29]

    western edge of this property. The Company plans to construct a transmission line from a point on the existing Windsor-Courtney-Charleroi line, a distance of 1.8 miles in an easterly direction, to connect with a proposed new substation to be known as the Peters substation. The Company desires to locate the point of connection on the Simmons property. This would require, not only a right-of-way of 1658 feet through the middle of the farm for the new line, but also a temporary right-of-way of 2022 feet along the present line while an existing steel tower is removed and a new tower erected to accommodate the connection point. The permanent right-of-way, 100 feet in width, will occupy 3.81 acres and traverse 1400 feet of cultivated land and 200 feet of brush and woodland. The temporary right-of-way, of varying width, will occupy 2.32 acres and traverse 350 feet of peach orchard, 800 feet of cultivated land, 450 feet of brush, and 400 feet of farm reservoir.

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 ...

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