Connecticut Light & Power Co. v. Costello

• Decision Date: 06 July 1971
• Citation: 288 A.2d 415,161 Conn. 430
• Court: Connecticut Supreme Court
• Parties: CONNECTICUT LIGHT AND POWER COMPANY v. Daniel B. COSTELLO et al.

Page 415

288 A.2d 415

161 Conn. 430

CONNECTICUT LIGHT AND POWER COMPANY v. Daniel B. COSTELLO et al.

Supreme Court of Connecticut.

July 6, 1971.

William J. Butler, Hartford, with whom was Omar H. Shepard, Jr., Willimantic, for the appellants (defendants).

Walter F. Torrance, Jr., Waterbury, for the appellee (plaintiff).

Before THIM, RYAN, SHAPIRO, FITZ GERALD ^* and KLAU ^*, JJ.

KLAU, Associate Justice.

The plaintiff brought a petition to the Superior Court for the appointment of a committee of three disinterested persons to assess just damages resulting from the condemnation of a right-of-way for a line for the transmission of electric current across the land of the defendants Daniel B. Costello, Ann L. Costello, Patricia E. Leta and James V. Leta, hereinafter called the defendants, located in the town of Mansfield. In the petition the plaintiff alleged that it had determined that it was necessary and convenient for it to enter on and use an easement on part of this land, and that the parties had been unable to agree on the purchase price. The plaintiff also applied for an order of notice of the pendency of the petition by service on the defendants of a copy of the petition. The answer of the defendants admitted the ownership of the land but denied all the other allegations of the petition and by way of special defenses alleged (1) that the taking of the easement was not necessary and convenient but was unreasonable and in abuse of discretion, (2) that the plaintiff had failed to exhaust all reasonable efforts to obtain the easement by agreement and (3) that the plaintiff had not applied for or obtained approval from the selectmen of the town of Mansfield for the location of its proposed lines, nor had it applied for or obtained a special permit from the Mansfield planning and zoning commission for the utilization of the defendants' property for overhead or underground lines. The court rendered judgment appointing a committee to assess the damages. From this decision the defendants took their appeal.

The defendants' assignment of errors seeks the correction of the finding of facts and of the court's conclusions of law.

The finding, which is not subject to any correction which will advantage the defendants, is set forth as the claims of the defendants are discussed. The first claim of the defendants is that the court erred in holding that the plaintiff had by eminent domain, the right to enter and take an easement over the defendants' land for the purpose of erecting poles, towers, conduits and fixtures thereon, deemed necessary in conducting electricity over and through the defendants' land.

The factual background for the necessity of acquiring this easement by the plaintiff as disclosed by the finding is as follows. The plaintiff is a public utility company which generates, transmits and distributes electric power pursuant to authority set forth in the General Statutes and the special acts of the state of Connecticut. In November, 1967, it commenced the acquisition of rights-of-way over approximately 210 properties between the town of lebanon and the state of Rhode Island, a distance of approximately 36.7 miles, for the purpose of constructing transmission lines to interconnect the plaintiff's electrical system, from its Card Street substation, in the town of Lebanon, with other electric systems in New England, at Medway, Massachusetts. The plaintiff anticipated the construction of a public utility commission approved, 345,000-volt transmission line on the right-of-way, to be completed in the fall of 1970 and anticipates construction of a second 345,000-volt transmission line on the right-of-way in 1978 or 1979. In addition, the plaintiff anticipates the construction of a 115,000-volt transmission line on the right-of-way to serve substations in the general area of the right-of-way. The right-of-way acquired for the entire distance of 36.7 miles was 300 feet wide and consisted, in part, of an existing 150- foot right-of-way owned by the Hartford Electric Light Company, hereinafter referred to as HELCO.

The plaintiff, by resolution of its board of directors, determined that the taking of the easement over the defendants' land was necessary and convenient. Following a hearing on the application of the plaintiff, the public utilities commission found that the construction and operation of this 345-KV transmission line from the plaintiff's Card Street substation in Lebanon to the Rhode Island state line was necessary to insure the reliability of electric power in the state of Connecticut and the Big 11 New England power loop, from which the plaintiff and Connecticut will receive mutual benefits. The public utilities commission has given its approval for the construction of the entire transmission line, including that portion which crosses the defendants' land, except for approximately two miles through Mansfield Hollow, with respect to which a supplemental hearing would be subsequently held, the partial approval being given to permit the plaintiff to commence work so that the line would be completed in the fall of 1970. No portion of the right-of-way to be acquired from the defendants included the existing HELCO right-of-way.

The plaintiff's corporate existence stems from the charter granted to The Rocky River Power Company in 1905 by special act of the legislature. 14 Spec.Laws p. 860. In 1917, The Rocky River Power Company was authorized to acquire the property and franchises of The Housatonic Power Company and to change its name to The Connecticut Light and Power Company. 17 Spec.Laws p. 833. The Housatonic Power Company was organized by a special act of the legislature in 1893 and was given authority to generate, transmit and sell electricity throughout the state except in towns where other companies had previously been authorized to sell electricity. 11 Spec.Laws p. 111 § 2. It is worthy of note that § 6 of the original charters of both companies are in substantially the same language. These companies in their charters were given power to build, erect and maintain dams in specific locations and under § 6 of their charters were empowered to enter on all such land or real estate as may be necessary and convenient to enter on and to use in the erection of dams and the setting back of water caused thereby, and in the construction and use of reservoirs, embankments, canals, aqueducts, and the setting back of water caused thereby, and in the construction of wheelpits, races, wasteweirs, culverts and bridges and as may be necessary and convenient in the location and construction of wheelpits, races, and wasteweirs and in developing and utilizing the power thereof, and in the alteration in the course of roads and highways; and the company shall be held to pay all damages that may arise to any person or persons, and if the person or persons to whom damages may so arise and the company cannot agree as to the amount of damages, the company may, after ten days' written notice to the adverse party, apply to the Superior Court of the county in which the real estate or other property damaged may be situated for the appointment of a committee. See 11 Spec. Laws p. 112 § 6; 14 Spec.Laws p. 862 § 6.

In 1899, § 6 of the 1893 charter of The Housatonic Power Company was amended, giving it the power to take real estate by condemnation for erecting and maintaining its poles, wires, conduits and fixtures, outside of the cities and villages, public grounds and highways for conducting electricity. 13 Spec.Laws p. 24 § 5.

Thus, in 1917, when The Rocky River Power Company, thereafter known as The Connecticut Light and Power Company, acquired the rights and franchises of The Housatonic Power Company, it had the right to condemn and take land deemed necessary and convenient for erecting towers, poles and other facilities for the transmission of electricity throughout the state, excepting that the right to take real estate did not extend to cities and villages, public grounds and highways. 13 Spec.Laws p. 24 § 5. In 1919, the charter of The Connecticut Light and Power Company was amended. , 18 Spec.Laws p. 106. Sections 2 and 3 of that act provide as follows: 'Sec. 2. The Connecticut Light and Power Company is authorized to build and maintain such dams, reservoirs, embankments, canals, conduits, aqueducts, wheel-pits, waste-weirs, races, roads culverts, bridges, buildings, power houses, structures, plants and systems as may be convenient or necessary to fully and economically develop and utilize the rights, powers and privileges of said company. Sec. 3. Whenever it shall be necessary or convenient, in the exercise of any of the rights, powers and privileges of the company, for it to enter upon, take and use any lands, real estate and privileges, it shall have the power to enter upon, take and use all such lands, real estate and privileges in the same manner and subject to the terms and conditions all as provided in section six of the act incorporating The Rocky River Power Company, approved June 22, 1905.'

In Connecticut Light & Power Co. v. Bennett, 107 Conn. 587, 141 A. 654, the court held that under the particular circumstances affecting the defendants' land the plaintiff had the right to enter thereon and take an easement by condemnation to erect transmission lines, under the rights and privileges which it had acquired from The Housatonic Power Company, before the enactment of § 3 of the Special Acts of 1919. 18 Spec.Laws p. 107 § 3. The court further stated (p. 593, 141 A. p. 656) that '(s)ection 3 would have given to the plaintiff the right to take, in invitum, the land of the defendant had it not already possessed this power. * * * The grant of this power now vested in the plaintiff is, though general in terms, as express and clear as if the rights, powers, and privileges had been specifically enumerated; it is more clear and definite than has sometimes been found in legislative enactments which we have...