Fort Pitt Gas Co. v. Borough of Sewickley

Opinion by

Mb. Justice Fell,

This appeal is from a decree regulating the granting of permits by the borough of Sewickley to the Fort Pitt Gas Company for opening the highways and streets of the borough in order today, relay and repair the company’s pipes used for the conveyance of natural gas, and fixing the fee to be charged for such permits. The proceedings in the common pleas were under the twelfth section of the Act of May 29, 1885, P. L. 29. The objections urged to the decree are (1) the jurisdiction under the act is limited to cases where the dispute relates to the manner of laying, relaying or repairing pipes with respect to the public safety and convenience; (2) the fee fixed by the borough ordinance was reasonable and should not have been reduced by the court.

We do not assent to the narrow construction of the act contended for by the appellant. The act is entitled, “ An act to provide for the incorporation and regulation of natural gas companies.” The twelfth section, after providing for the settlement by the court on petition of either party of all disputes which may arise between natural gas companies and the authorities of any borough, city, township or county through or over whose highways pipes are to be laid, as to the manner of laying the pipes and the character thereof with respect to safety and public convenience, makes it the further duty of the court “ . . . . in a like manner and upon a like petition, when and as often as any dispute arises as to pipes already laid, to define the duties of such corporation as to their relaying, repair, mending or improvement.”

The 1st section of the act invests natural gas companies With the right of eminent domain, and. the 12th section regulates the manner in which the right shall be exercised with respect to the public safety and convenience. There are two classes of disputes which the court is authorized to settle: (1) those arising as to the manner in which pipes shall be laid and the character thereof; (2) those relating to the relaying or repair of pipes already laid. As to the first the court is to define what precautions shall be taken; as to the second it is to define the duty of the company to relay or repair. A dispute which arises from the denial of the right of the company to make excavations in order to reach and repair its pipes, is as clearly a dispute within the meaning of the 12th section as one which arises from the refusal of the company voluntarily to make needed repairs. And a dispute may exist although the denial of the right is not absolute and unqualified, but is as in this case conditional upon the payment of a license fee which the company considered unreasonable in amount and unauthorized by law. As there was a dispute the court had jurisdiction under the proceedings instituted.

The ordinance of January 11,1900, while general in its terms, applies only to the defendant company, and apparently from what the record shows it was passed in a spirit of resentment and retaliation because of the increase in the price of gas furnished by the plaintiff to consumers. The fee fixed in 1873 for a permit to open streets was fifty cents. The increase in 1900 was to $3.00 for unpaved, and $5.00 for paved streets, and a deposit of $10.00 was required in each case. This increase seems to be purely arbitrary and disproportionate to the expense incurred by the borough in the supervision of its streets and to the liability to which it is exposed. The court restored the former fee of fifty cents for unpaved streets and fixed the fee for paved streets at $2.00, the change probably being made because of the change in the character of street paving since 1873. The allowance for changed conditions practically puts the parties where they placed themselves before a dispute arose as to other matters.

The decree is affirmed at the cost of the appellant.