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FRANCIS J. BLANK v. COLUMBIA GAS PENNSYLVANIA (01/02/74)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 2, 1974.

FRANCIS J. BLANK, APPELLANT,
v.
COLUMBIA GAS OF PENNSYLVANIA, INC., APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Columbia Gas of Pennsylvania, Inc., Condemnor, v. Francis J. Blank, Condemnee, No. 631 July Term, 1972.

COUNSEL

James C. Larrimer, with him Dougherty, Larrimer & Lee, for appellant.

David S. Watson, with him Thorp, Reed & Armstrong, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.

Author: Kramer

[ 11 Pa. Commw. Page 305]

This is an appeal filed by Francis J. Blank (Blank) from an order of the Court of Common Pleas of Allegheny County, dated February 26, 1973, wherein Blank's preliminary objections to the petition for approval of bond filed by Columbia Gas of Pennsylvania, Inc. (Columbia) were "dismissed without prejudice to the right to obtain the just compensation allowable to him [Blank] by law for the easement acquired over their [Blank's] property."

This is an eminent domain proceeding in which Blank, as a property owner and condemnee, is challenging the power of Columbia to condemn a portion of Blank's residential property for a right-of-way to lay an underground 12-inch gas line. Columbia is a natural gas public utility incorporated under the Act of May 29, 1885, P.L. 29, § 1, as amended, 15 P.S. § 3541 under which act it is given the power: "Fifth . . . [T]o have and possess the right also to enter upon, take and occupy such lands, easements and other property as may be required for the purpose of laying its pipes for transporting and distributing gas." See also the Business Corporation Law, Act of May 5, 1933, P.L. 364, § 322, as amended, 15 P.S. § 1322(A)(2).

[ 11 Pa. Commw. Page 306]

After having followed all the procedures required by law, Columbia filed its Petition for Approval of Bond to be Regarded as Declaration of Taking, fully disclosing a descripton of the land of Blank to be taken for the said right-of-way. Columbia's bond was approved and filed pursuant to an order of court dated April 17, 1972. Notice of the approval and filing of the bond, together with a notice of Blank's right to file preliminary objections, were served upon Blank. Blank filed preliminary objections wherein he alleged that Columbia owned and maintained a right-of-way adjacent to Blank's property thereby obviating any need or necessity for the condemnation of Blank's property. Blank challenged the authority of Columbia to condemn and also asserted that such condemnation was for the accommodation of Blank's neighboring property owners, rather than for the purposes of Columbia. Extensive hearings were held before the court below, after which the court filed its opinion and order.

In the court's opinion, it was properly found from the record that the existing 12-inch gas pipeline was installed under a right-of-way dating back to December 22, 1888. Although the record is not clear whether the existing pipe was installed in 1888, the record certainly establishes that with the possible exception of repairs and minor replacements, the pipe is more than 80 years old. The existing pipe runs between two houses, constructed circa 1947, one of which is adjacent to Blank's property. The space between these two houses is approximately 12 feet in width. To the rear of these two houses, there is a retaining wall and land consisting of a land fill created subsequent to the laying of the original pipeline. No one has raised any question on Columbia's assertion that the existing 12-inch pipeline is in need of replacement.

In dismissing the preliminary objections, the lower court held that the record failed to disclose "an arbitrary

[ 11 Pa. Commw. Page 307]

    or capricious exercise of discretion" by Columbia sufficient to invalidate the exercise of the condemnation power delegated to Columbia by the Legislature.

In his appeal to this Court, Blank has been very candid in his assertion that he is not challenging any of the procedures utilized by Columbia, nor is he challenging the necessity for the replacement of the old gas pipeline. He further concedes that if this were merely a case of the selection of one of two possible rights-of-way, the selection of the better route is within the discretion of Columbia. The sole question which is posed by Blank in this appeal is where the public utility condemnor owns and maintains an existing right-of-way (1) must the utility condemnor establish a "necessity" for the relocation of the right-of-way onto the other property and (2) does the condemnor or the condemnee bear the burden of proving that such a necessity does or does not exist?

Since (1) the power of Columbia to condemn, (2) the procedure Columbia followed, and (3) the necessity for the replacement of the existing line have not been questioned by Blank, we will turn to the narrow issue above-described.

Our scope of review is limited to a determination of whether the court below abused its discretion or committed an error of law. The question before us is not whether this Court would have reached the same conclusion as the court below, but rather whether the record contains sufficient competent evidence to support the court's conclusions and order. See Stitt v. Manufacturers Light and Heat Company, 432 Pa. 493, 248 A.2d 48 (1968); and Schwartz v. Urban Redevelopment Authority of Pittsburgh, 416 Pa. 503, 206 A.2d 789 (1965). Since the Supreme Court opinion in McConnell Appeal, 428 Pa. 270, 236 A.2d 796 (1968), and since the passage of the Act of July 20, 1968, P.L. 459, § 59(f), 15 P.S. § 2204(f) (which repealed in part Section

[ 11 Pa. Commw. Page 30810]

of the Act of May 29, 1885, P.L. 29, as amended, 15 P.S. § 3549, insofar as it relates to practice and procedure for determining damages in eminent domain proceedings), it has been proper to challenge condemnation of a gas public utility by way of preliminary objections to the declaration of taking.

With regard to the specific issue which has been presented by Blank, this Court has spoken on the discretionary power of a public utility condemnor in the selection of the route which the utility's right-of-way takes. In Lesher v. The American Telephone and Telegraph Company of America, 1 Pa. Commonwealth Ct. 522, 276 A.2d 325 (1971), Judge Mencer of this Court set forth the guidelines. He there stated:

"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 contention and affirm the lower court's dismissal of appellants' preliminary objections.

"The selection of the right-of-way is a matter for the public utility and will not be set aside unless the powers conferred upon the public utility are wantonly, capriciously or arbitrarily exercised. West Penn Power Co. v. Pennsylvania Public Utility Commission, 199 Pa. Superior Ct. 25, 184 A.2d 143 (1962). The failure to select a route which would reduce the inconvenience to the landowners does not constitute grounds for withholding the exercise of the power to condemn the easement. Stone v. Pennsylvania Public Utility Commission, 192 Pa. Superior Ct. 573, 162 A.2d 18 (1960). In Schenck v. Pittsburgh, 364 Pa. 31, 36, 70 A.2d 612, 614 (1950), we find the standard for the proper exercise of the power of eminent domain when the Court stated: 'It has been held in many cases that where the right of

[ 11 Pa. Commw. Page 309]

    eminent domain is vested in a municipality, an administrative body, or even a private corporation, the question as to whether the circumstances justify the exercise of the power in a given instance is not a judicial one, at least in the absence of fraud or palpable bad faith.' The appellants do not claim the existence of fraud but do assert that the selection of a longer route which did not traverse their neighbor's land constituted palpable bad faith. We cannot agree, since appellee's failure to condemn an easement on another's property is not relevant to the proper exercise of appellee's power to condemn an easement on appellants' property. The record does not support any bad faith on the part of the appellee but, on the contrary, establishes that appellee expended additional money to make a longer installation to accommodate appellants.

"In Duquesne Light Co. v. Upper St. Clair Township, 377 Pa. 323, 338, 105 A.2d 287, 294 (1954), it was stated: '". . . 'Under a delegation of the power of eminent domain the grantee of the power, in the absence of legislative restriction, may determine the location of the land [to be] acquired, and such determination will not be interfered with by the courts if it is made in good faith and is not capricious or wantonly injurious, or in some respect beyond the privilege conferred by the charter or statute. The landowner cannot raise the objection that there is no necessity for condemning the property because some other location might be made.'"'" (Emphasis in original.) 1 Pa. Commonwealth Ct. at 525-526, 276 A.2d at 326-327. We can see no logical reason for not extending these sound guidelines to the situation before us. Unless the objecting condemnee can show action on the part of the condemnor amounting to fraud, palpable bad faith, capriciousness, arbitrariness or unreasonableness, the courts should not interfere with the choice of the route to be taken by the necessary right-of-way. Under the facts disclosed

[ 11 Pa. Commw. Page 310]

    in the record in this case, it is not very hard to imagine that if for some reason this Court would force Columbia to utilize the existing right-of-way in the 12-foot space between the two existing houses, the owners of either or both of those houses could now prove that relocating the line onto Blank's property would be more reasonable. In fact, any of the neighbors in this area could make the same argument now that Columbia has created the record before us. It is understandable that Blank, or any property owner, will become emotionally disturbed over the thought of a utility pipeline, wire, or cable traversing his property, but all must recognize that every property owner in this country owns his property subject to the right of the public to take all or any portion of his property for the public good, subject only to the constitutional protection that property owners will be paid for any damages done by way of such taking.

Our review of the law permits us to agree with the court below that the burden was upon Blank to prove that the discretionary choice in relocating this gas line was carried out in a capricious or fraudulent manner, or that Columbia's actions were based upon private motives inconsistent with the public welfare. Our Supreme Court in Washington Park, Inc. Appeal, 425 Pa. 349, 229 A.2d 1 (1967) not only supports that principle, but characterizes the condemnee's burden as a heavy one. Although the lower court acknowledged this principle on the burden of proof, a reading of the record makes it quite apparent that Columbia went forward in the presentation of the case as though it had the burden. The manner in which the case developed at the hearing found Blank, the condemnee, proffering more in the way of rebuttal than the presentation of a case in support of his burden. Our careful reading of the testimony permits us to conclude that even if one were to improperly assume that Columbia bore the burden,

[ 11 Pa. Commw. Page 311]

    its presentation in this case more than adequately supports the reasonableness of its discretionary choice to relocate the right-of-way of the subject 12-inch gas pipeline. The record discloses several considerations and reasons which went into Columbia's decision to relocate the line. The difficulties of construction and the narrowness of the space between the two buildings adjacent to the existing right-of-way, standing alone, as described in the record of this case, are sufficient credible evidence to support the court's holding that the record failed to disclose an arbitrary or capricious exercise of discretion by Columbia sufficient to invalidate the exercise of the condemnation power granted to it by the statute.

Based upon the above discussion, we affirm the order of the court below.

Disposition

Affirmed.

19740102

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