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KEARNS ET UX. v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. (06/12/63)

June 12, 1963

KEARNS ET UX., APPELLANTS,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION.



Appeal, No. 25, March T., 1963, from order of Pennsylvania Public Utility Commission, Application Docket No. 89011, in case of Dewey Ray Kearns et ux. v. Pennsylvania Public Utility Commission et al. Order affirmed.

COUNSEL

Paul N. Barna, with him Barna and Barna, for appellants.

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

Charles L. McCormick, with him James F. Boyer, for intervening appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Wright

[ 201 Pa. Super. Page 175]

OPINION BY WRIGHT, J.

On April 12, 1962, the West Penn Power Company applied to the Pennsylvania Public Utility Commission for approval of the exercise of the right of eminent domain

[ 201 Pa. Super. Page 176]

    in acquiring a right-of-way across property of Dewey Ray Kearns and Clara E. Kearns, his wife, in Somerset Township, Washington County, Pennsylvania. Testimony was taken at a hearing on June 13, 1962, at which time Wilbur H. Kearns, a son and tenant of the property owners, testified in opposition to the application. By its order dated July 23, 1962, the Commission approved the application. This appeal by the property owners followed.

The record discloses that a transmission line has been in existence across the property in question for some forty years. It was erected by the Company in 1923 pursuant to a right-of-way agreement with Minnie H. Hetherington, dated May 19, 1922, and duly recorded in Washington County. At that time Mrs. Hetherington was a life tenant. She died on May 13, 1957. The Company takes the position that this right-of-way agreement is valid as against the appellants, who are owners of the remainder interest. Since there is a controversy between the parties on this issue, and since an attempted financial settlement of the matter was unsuccessful, the Company brought the instant proceeding for approval of the right of eminent domain in acquiring the right-of-way.

The Act of May 21, 1921, P.L. 1057, 15 P.S. 1182, 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. So far as here pertinent, the statute 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 ...


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