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RAYMOND A. WESTRICK v. APPROVAL BOND PEOPLES NATURAL GAS COMPANY AND SURETY UNDER RIGHT EMINENT DOMAIN (02/10/87)

decided: February 10, 1987.

RAYMOND A. WESTRICK, APPELLANT
v.
APPROVAL OF BOND OF THE PEOPLES NATURAL GAS COMPANY AND SURETY UNDER RIGHT OF EMINENT DOMAIN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Cambria County in the case of In Re: Approval of Bond of The Peoples Natural Gas Company and Surety under right of Eminent Domain to Raymond A. Westrick, No. 2418 Term, 1984.

COUNSEL

William Sumner Scott, The Scott Law Firm, for appellant.

James Francis O'Malley, Yost & O'Malley, for appellee.

Judges Craig and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 103 Pa. Commw. Page 579]

Raymond A. Westrick appeals from a decision of the Court of Common Pleas of Cambria County which dismissed his exceptions to its earlier order denying his preliminary objections to the petition of the Peoples Natural Gas Company for approval of a bond to secure a taking. We affirm.

The Gas Company condemned a portion of Westrick's property for a gas pipeline right-of-way. The declaration of taking described the proposed pipeline as a six-inch line with thirty feet on each side that could not be utilized at any time for any surface structure. The plan or description received as part of the declaration of taking did not show the depth of the taking. The declaration did indicate that as a public utility it proposed to transport gas. Since the Gas Company does not have taxing authority, it was required to file a bond with the declaration, securing the compensation, pursuant to section 403(a) of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-403(a). The bond shows the intent of the Gas Company to appropriate a pipeline right-of-way, and not a fee.

The pipeline was permanently installed in a straight line across Westrick's property for a distance of seventy

[ 103 Pa. Commw. Page 580]

    feet, connecting an old pipeline to a newly constructed pipeline. Westrick filed preliminary objections contending that the declaration of taking should be amended to reflect a taking in fee simple. After a hearing, the preliminary objections were denied and exceptions were dismissed. Westrick contends that the taking interferes substantially with his right to extract coal below the surface of the taking, and therefore constitutes a taking in fee, rather than a right-of-way. The Gas Company contends that only an easement was taken.

Condemnation is accomplished by the filing of a declaration of taking. The declaration must contain a statement of the nature of the title acquired, if any, a brief description of the purpose of the condemnation, and a description or a plan of the property condemned. Section 402(b) of the Code, 26 P.S. § 1-402(b).

To determine whether a fee simple or an easement was taken by the Gas Company in its exercise of the power of eminent domain, we must look to its declaration of taking in conjunction with the statutory authorization by which it acted. Cavalier Appeal, 408 Pa. 295, 183 A.2d 547 (1962). The declaration of taking is an act of general application concerning the title acquired in eminent domain or the interpretation of laws or descriptions of the condemnor.

Section 3549 of the Natural Gas Companies Act (Act), Act of May 29, 1885, P.L. 29, as amended, 15 P.S. § 3549, repealed in part by the Act of July 20, 1968, P.L. 459, provides that "[a]ny and all corporations . . . engaged in such business shall have the right of eminent domain for the laying of pipelines for the transportation and distribution of natural gas. . . ." Section 3541 of the Act, 15 P.S. § 3541, provides that a natural gas company shall "have and possess the right ...


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