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WILMER A. LESHER AND RUTH LESHER v. AMERICAN TELEGRAPH AND TELEPHONE COMPANY AMERICA (04/14/71)

decided: April 14, 1971.

WILMER A. LESHER AND RUTH LESHER
v.
THE AMERICAN TELEGRAPH AND TELEPHONE COMPANY OF AMERICA



Appeal from the order of the Court of Common Pleas of Montgomery County, Civil Action -- Law, No. 69-14,470 in case of: In re: Condemnation by the American Telegraph and Telephone Company of Pennsylvania of a Right of Way or Easement Over Real Property in Upper Hanover Township, Montgomery County, Pennsylvania. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Lawrence Sager, with him Sager & Sager, for appellant.

George C. Corson, Jr., with him Wright, Spencer, Manning & Sagendorph, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino and Mencer. Judge Rogers absent. Opinion by Judge Mencer. Judge Manderino concurred in the result.

Author: Mencer

[ 1 Pa. Commw. Page 523]

On May 21, 1969, the American Telegraph and Telephone Company of Pennsylvania, hereinafter referred to as appellee, condemned an easement across the property of Wilmer A. Lesher and Ruth M. Lesher, hereinafter referred to as appellants. The appellee condemned the easement under and by virtue of Section 1 of the Act of June 5, 1947, P.L. 424, 15 P.S. § 3304. The procedures governing the tender and approval of a bond are controlled by Section 41 of the Act of April 29, 1874, P.L. 73, as amended, 15 P.S. § 3022. On October 16, 1969, the appellee petitioned the Court of Common Pleas of Montgomery County for approval of a condemnation bond for the easement condemned over appellants' property. The appellants filed preliminary objections and following appellee's answer and argument the court en banc dismissed the preliminary objections and this appeal followed from said dismissal.

[ 1 Pa. Commw. Page 524]

The easement in question was necessary for the placement of an underground coaxial cable which will provide for the transmission of long distance communications between the Chicago and St. Louis areas and the eastern seaboard states. The cable is about three inches in diameter and was buried at least four feet underground so as to provide security from natural or man-made disaster, while causing as little inconvenience to the landowners as possible. The cable has the capacity to carry 32,400 simultaneous message circuits.

The easement is not fenced off and the landowners are free, not only to traverse the easement, but also to utilize the surface area for such purposes as the cultivation and harvesting of crops. In addition, since construction has been completed and the land has been restored to an equivalent pre-existing condition, there is no physical evidence of the cable, except for occasional surface markers which warn against deep excavation.

The appellee had considered two alternative cable routes which would have traversed the appellants' property prior to selecting the final cable location which is the subject of this appeal. The first route considered would have crossed appellants' property but would also have traversed the neighboring property owned by one Wentz. Mr. Wentz objected to the cable's crossing his land and thereafter appellee considered a second route that would be approximately 100 feet longer and would be entirely over appellants' property. Inherent in the consideration of this second route was the fact that it was possible to bypass the Wentz property but impossible to devise a cable route that would not traverse appellants' property. The second route considered was abandoned because of the appellants' opposition to such route because the cable would have gone through fields which were being drained by the use of tiles. Upon learning of this condition, the appellee selected yet

[ 1 Pa. Commw. Page 525]

    another route for its cable which would be less objectionable to appellants. This selected route was 440 feet longer than the second route and cost between $6500 and $7000 more for installation of the cable, but it was more acceptable to appellants.

The contention raised by appellants is that the appellee could have selected a shorter route which would have crossed the Wentz property and resulted in a shorter easement across their property and that appellee's failure to do so was an arbitrary and capricious exercise of its power to condemn easements. We must reject such a ...


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