Appeal from the Order of the Court of Common Pleas of Washington County in case of In Re: Condemnation of Lands and Property of Wilma Bruni, Sirio E. Bruni and Raymond Bruni, No. 507 January Term, 1976.
Stephen D. Marriner, with him McCreight, Marriner & Crumrine, for appellant.
Frank A. Conte, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Wilkinson, Jr. Judge DiSalle dissents.
[ 36 Pa. Commw. Page 117]
This is an appeal from a decision of the Court of Common Pleas of Washington County holding that the appellant had effectuated a de facto taking of appellees' land.*fn1 We reverse.
Appellees own a 154.17 acre tract of farmland in Peters Township, Washington County. In 1963 appellees entered into an agreement with the appellant granting it certain easements and rights of way for the purpose of constructing and maintaining an electric substation and electric power lines. The agreement further provided that appellant could construct
[ 36 Pa. Commw. Page 118]
up to 14 poles and two (2) towers on appellees' property, as well as "such anchors, guys, wires, cables, and fixtures as the said GRANTEE [appellant] may deem necessary, including the right from time to time to install additional wires, cables, and fixtures, upon, over, under, along, across, and through land of [appellees]."
In 1971 appellant erected upon the designated 50 foot right of way two steel poles. These steel poles carry one electric line carrying 138,000 volts. The wooden poles had on them two electric lines, one carrying 12,000 volts and the other 25,000 volts. In addition, while the wooden poles were about 45-50 feet in height, the steel poles are about 75-85 feet in height.
The trial court basically relied on four factors in finding a de facto taking. First, it referred to the difference in the voltage carried by the lines on the wooden poles as opposed to that carried by the steel pole line. There is no limitation on the voltages lines may carry in the right of way agreement. Second, the trial court relied on its belief that it is the prevailing practice for the appellant to acquire a one hundred foot right of way when constructing steel poles of the type under consideration here. Thus, the trial court in effect concluded that the appellant had taken an additional 50 foot right of way. There is no evidence in the record to support the finding of such a practice, even if it were relevant. Third, the trial court referred to the steel poles as towers. Since the appellant had constructed the allowable number of towers prior to 1971, this would necessitate a finding that the quota specified in the agreement had been exceeded. Fourth, the trial court concluded that since the steel poles in question were not in use at the time of the 1963 agreement, their use was not within the scope of the agreement as contemplated by the parties at the time they entered into it. There is nothing in
[ 36 Pa. Commw. Page 119]
the record to support either the third ...