Colgate v. Philadelphia Electric Power Co.

• Decision Date: 24 June 1927
• Docket Number: No. 4071.,4071.
• Citation: 20 F.2d 263
• Parties: COLGATE v. PHILADELPHIA ELECTRIC POWER CO. et al.
• Court: U.S. District Court — Western District of Pennsylvania

20 F.2d 263 (1927)

COLGATE v. PHILADELPHIA ELECTRIC POWER CO. et al.

No. 4071.

District Court, E. D. Pennsylvania.

June 24, 1927.

Townsend, Elliott & Munson, of Philadelphia, Pa., E. J. Dimock, of New York City, and Benjamin C. Atlee, of Lancaster, Pa., for plaintiff.

William Clarke Mason and A. Allen Woodruff, both of Philadelphia, Pa., and Ralph J. Baker, of Harrisburg, Pa., for defendant Philadelphia Electric Power Co.

Thomas J. Baldrige, Atty. Gen., for the Commonwealth of Pennsylvania.

W. Y. Blanning and John Fox Weiss, both of Harrisburg, Pa., for Public Service Commission of Pennsylvania.

Before DAVIS, Circuit Judge, and DICKINSON and KIRKPATRICK, District Judges.

DICKINSON, District Judge.

The conclusion reached is that the bill filed in this case should be dismissed, which, of course, carries with it a denial of the motion for a preliminary injunction.

Discussion.

The arguments addressed to us on behalf of the respective parties have been of such clarity, fairness, and fullness that there is no need of a prolonged discussion of the merits of this bill. It is the due, however, of counsel whose abilities and industry have thus lightened our labors that we make a statement of some of the reasons which have led us to the conclusion reached.

The complaint of the plaintiff is directed against a corporation which is moving to exercise the power of eminent domain committed to it by the laws of Pennsylvania, and includes the public bodies without whose sanction the power cannot be exercised. It is because of the inclusion of these latter defendants that the cause has been heard before the specially constituted court created by section 266 of the Judicial Code and the amendments thereof. The gravamen of the complaint is that the possession of the lands of the plaintiff, unless he has the right to the protection of the court, will be taken from him through condemnation proceedings. It has been urged upon us, in effect, that it is the encroachment upon the rights of the plaintiff as owner of the lands to be condemned out of which his cause of action, if any, arises, and that the proceedings before, and any action which may be taken by, the public bodies concerned, are not the condemnation which will alone injure the plaintiff, if he is injured, but are merely the preliminary steps and compliance with a condition precedent to the possession and exercise of the power of eminent domain by the corporation defendant which may (but necessarily need not) be followed by condemnation. It is asserted to follow as a consequence that the defendants, other than the corporation defendant referred to, have no place in this proceeding.

In view of the conclusion reached that the bill discloses no cause of action, it is needless to pursue the discussion pro and con of the proposition advanced. There is likewise no need to discuss the further thought suggested (although no point is made of it) that, if the defendants referred to as public bodies are out of the case, the occasion for the cause being determined by this specially constituted court vanishes, because all the parties have expressly waived the question of jurisdiction, if there be any. Whether the decree to be entered is that of this specially constituted court, or of the District Court in which the bill is filed, is of no moment in the situation now presented.

The question of whether the bill has been prematurely brought against the corporation defendant we dispose of in the statement that it has not. The injunction must issue, if at all, before condemnation. The right to condemn cannot be raised at the trial following a condemnation. Such trial is merely of a feigned issue, to determine solely the quantum of compensation.

This brings us to the real question before us. We are indebted to the frank admission of the very competent counsel for plaintiff for the opportunity of going directly to this real question. The admission is that, were this the case of the taking of the lands of the plaintiff for a Pennsylvania public use, the lawful right to condemn, and compliance with all the statutory requirements, would be present. As it is, the lands are in Pennsylvania. They are to be taken for the overflow purposes of a dam in Maryland. This dam is to supply water power to an electric generating plant, which is likewise in Maryland. The plaintiff's lands,...