Monongahela Power Co. v. Shackelford , 137 W. Va. 441 ( 1952 )

Haymond, Judge,

dissenting:

The holding of the majority that under Code, 54-1-6, as amended by Chapter 60, Acts of the Legislature, 1949, Regular Session, the petition of the applicant in a proceeding in eminent domain to acquire an easement in land must describe the easement with such particularity that the court may determine that no more property is appropriated than is reasonably necessary for the purpose for which it is acquired, in effect requires the applicant definitely to restrict the width of the easement within fixed limits. In my opinion that holding is erroneous and from it I respectfully dissent.

As pointed out in the majority opinion, the map filed with the petition of the applicant definitely locates the center line of the easement proposed to be acquired. As also set forth in the opinion, the statute, before the amendment of 1949, limited the width of the land to be acquired to one hundred and fifty feet, but as amended in 1949, the limit imposed, instead of a definite number of feet in width, was fixed as “such quantity as is necessary for the purpose or purposes for which it is appropriated.” It is evident that the Legislature, in removing the limitation of one hundred and fifty feet in width and in fixing the limitation to such quantity as is necessary for the purpose for which the land taken is appropriated, did not intend to require the applicant, in every instance, to describe by metes and bounds the external boundaries of the land or the easement sought to be acquired or to locate it on the ground within definitely fixed limits as to width. To give the statute, as amended, that effect is to impose a restriction not imposed by the statute, to force the applicant to take and pay for more than it wants or needs for its intended purposes, and to impress upon the land of the owner an entirely unnecessary and unwanted burden. Here the applicant does not want or need the use of a strip of land of a fixed or definite width. It simply wants and needs the right to go upon the land to construct, above the surface with reference to a fixed center line, its lines over a space which, under the allegations of the petition and the evidence, will not exceed thirty two feet in width and, after such lines are placed, to use so much of the land as may be necessary to maintain them in proper condition of safety and repair and from time to time as occasion may require to have ingress and egress to and from its equipment and lines for all necessary purposes in their operation and maintenance. The extent of the use of the land by the applicant for those purposes is clearly limited by the statute as amended which provides that it shall use only such quantity as is necessary for the purposes for which the land is appropriated. After the obstructions, if any, along and on each side of the center line are removed and the lines are constructed above the surface, the applicant, in the necessary use of the easement, will have occasion only rarely, if at all, to go upon the land, and the landowner will be free to use all of it at all times, subject only to such use of any of it by the applicant as may be necessary. This was evidently the use intended by the applicant to be made of the land when it filed its petition and omitted any description of the easement which expressly defines its maximum width.

This Court has repeatedly held that when an applicant shows the purposes of its organization, and that the land it proposes to take for public use is necessary, the quantity of the land to be taken by the ¿pplicant is generally a matter within its discretion; that such discretion, if exercised within legal limitations, is practically absolute; and that the courts will not control the right to take any particular land unless such right of the applicant is clearly abused. State of West Virginia by the State Road Commission v. Bouchelle, 137 W. Va. 572, 73 S. E. 2d 432; State v. Horner, 121 W. Va. 75, 1 S. E. 2d 486; Shelton v. State Road Commission, 113 W. Va. 191, 167 S. E. 444; Brooke Electric Company v. Beall, 96 W. Va. 637, 123 S. E. 587; West Virginia and Maryland Power Company v. Racoon Valley Coal Company, 93 W. Va. 505, 117 S. E. 891; The City of Huntington v. Frederick Holding Company, 85 W. Va. 241, 101 S. E. 461; Williamsport, Nessle and Martinsburg Railway Company v. Standard Lime and Stone Company, 76 W. Va. 21, 84 S. E. 908; Carnegie Natural Gas Company v. Swiger, 72 W. Va. 557, 79 S. E. 3, 49 L. R. A., N. S., 1073; Pittsburg Hydro-Electric Company v. Liston, 70 W. Va. 83, 73 S. E. 86, 40 L. R. A., N. S., 602. In my judgment the holding of the majority, in point 2 of the syllabus, that the petition of the applicant must describe the easement sought to be taken with sufficient particularity to enable the court to determine that no more property is appropriated than is reasonably necessary for the purpose for which it is acquired, violates the principles enunciated by this Court in the cases just cited and is contrary to those decisions in that it enables the court rather than the applicant to determine the extent of the easement which it seeks to acquire.

In Carnegie Natural Gas Company v. Swiger, 72 W. Va. 557, 79 S. E. 3, 40 L. R. A., N. S., 1073, involving an easement for a pipe line this Court held in point 2 of the syllabus: “Such right of way or easement authorized when less than the fee is taken need not describe a definite width or depth, but must pursue a definite .line, with courses and distances given, and have definite and fixed termini.” This syllabus was referred to and partially quoted with approval in the recent case of State ex rel. United Fuel Gas Company v. DeBerry, 130 W. Va. 481, 43 S. E. 2d 415. In West Virginia and Maryland Power Company v. Racoon Valley Coal Company, 93 W. Va. 505, 117 S. E. 891, in which the applicant, a hydro-electric company, sought to acquire an easement for the construction and the maintenance of transmission lines over certain land, though the petition fixed limits to the width of the easement, this Court said that “in such cases there is no great reason for defining width, as we observed in Carnegie Natural Gas Company v. Swiger, supra, and cases cited.” I can not distinguish in principle or in substance or effect the description of the easement in the petition in the case at bar from the description of the easement sought to be acquired in Carnegie Natural Gas Company v. Swiger, 72 W. Va. 557, 79 S. E. 3, 49 L. R. A., N. S., 1073, which this Court held to be sufficiently definite. In my opinion point 2 of the syllabus in that case and the above quotation from West Virginia and Maryland Power Company v. Racoon Valley Coal Company, 93 W. Va. 505, 117 S. E. 891, are clearly applicable to the easement sought to be acquired in this case.

The petition and the map exhibited with it set out a definite center line of the easement across the three parcels of land of the defendants of 44 acres, 2.75 acres and 15 acres and locate it on each of them by courses and distances and the center line, as located, has definite and fixed terminals. The petition alleges that the line for the transmission of electric power, for which the easement is sought, will consist of such poles, anchors, guys and other fixtures as may be necessary or convenient, three conducting wires and two ground wires to be located at all points at a distance of at least 25 feet above the surface of the land, crossarms not more than 32 feet in length to be attached to poles of 45 to 75 feet in length to support the wires, and a two pole structure and double crossarms on the tract of 44 acres. It also alleges that the wires are the only equipment to be placed over the tracts of 2.75 acres and 15 acres. In the petition the applicant prays that it be permitted to acquire an easement for its proposed transmission line and the right to go to and from the line for its construction, operation and maintenance, and to cut and remove any timber, undergrowth, limbs and trees that might interfere with or create any hazard to such line, and states that, subject to the foregoing, the landowners shall have full use and enjoyment of the land except that actually occupied by poles, anchors and guys. It is clear that the use and the occupancy of the three tracts of land by virtue of the proposed easement as described in the petition are effectively limited to the installation and the maintenance of the designated construction equipment, consisting of poles, crossarms, anchors and guys, and the three conducting wires and two ground wires, and that the location of the wires is restricted to a width which may not exceed 32 feet which is the maximum length of the supporting crossarms.

The contention of the defendants that the easement sought by the applicant, as described in the petition, is without limit as to width or space and would enable the applicant to use all their lands or portions of them other than the portions occupied by the transmission line when constructed is wholly devoid of merit. As the width of the easement is in effect limited to 32 feet and as that maximum width and the right in the applicant of ingress and egress upon the lands of the owners to enable it to operate and repair the line and to maintain it in safe condition are all that is necessary for the purpose for which the easement is appropriated, the limitation of the statute, as amended, to such quantity as is necessary for such purpose would necessarily require the applicant to compensate the landowners for any additional land which it might use and subject it to liability for damages which would result from any use by it of any other or additional portions of their land.

For the reasons stated and under the authorities cited, I would hold that the easement sought by the applicant is adequately described in the petition and that the extent of the easement is effectively limited by the statute, as amended, which clearly restricts the amount of land subject to the easement to such quantity as is necessary for the purpose for which it is appropriated.