Home Gas Co. v. Eckerson

• Decision Date: 18 January 1950
• Parties: Home Gas Company, Plaintiff,<BR>v.<BR>Louise E. Eckerson, Defendant.
• Court: New York District Court

197 Misc. 793

Home Gas Company, Plaintiff,

v.Louise E. Eckerson, Defendant.

January 18, 1950.

Lexow & Jenkins for plaintiff.

Walter A. McDermott for defendant.

DOSCHER, J.

On the 15th day of August, 1949, the Home Gas Company, petitioner herein, petitioned this court through a petition duly verified for a judgment permitting said petitioner to condemn the real property described in the petition and owned by the respondent for the public use specified in said petition, namely: the transmission of natural gas through a pipe line from Port Jervis to Orangeburg. The respondent, Louise E. Eckerson, through her attorney duly filed her answer which in substance denied the right of the petitioner to condemn; orally amended her answer on trial alleging that such condemnation was contrary to the Constitution of the United States in that the petitioner was taking property without due process of law; and alleged that the petition herein did not comply with the Condemnation Law.

On the 17th day of August, 1949, the court, pursuant to section 24 of the Condemnation Law, permitted the petitioner to enter immediately upon the real property and devote it temporarily to the public use specified in the petition. On the 28th day of November, 1949, the note of issue was filed and the case set for trial.

At the opening of the trial of the issues herein on the 12th day of December, 1949, the petitioner, through its attorneys moved to strike out the respondent's answer on the ground that the pipe line had already been built, was now in use and, therefore, the issues had become academic. Decision was reserved and the motion was again urged at the conclusion of the trial. The granting of said motion would eliminate any further consideration of the issues herein. The court will now consider said motion.

There can be no question, as the attorneys for the petitioner brought out in their argument to the court, that courts in this State have refused, and rightly so, to pass upon academic or moot questions when all there is left of an issue is, in effect, a decision on an abstract question of law. Here the statute itself creates a different situation. Section 24 of the Condemnation Law of the State of New York gives the court power to permit immediate entry upon real property to be taken, but only temporarily. In the same section, the law provides for the contingency of the dismissal or abandonment of the petition, thus indicating to all persons who would in any way be affected by said law that their rights would not and could not be cut off by a miscarriage of discretion on the part of the court. It cannot now be urged in the face of such direction of the law-making body of this State that the issues have become academic merely because temporary occupation was permitted. The motion is therefore denied and we will now proceed to the issues involved herein.

The Home Gas Company is a domestic corporation organized on or about the 7th day of June, 1897, for the purpose of purchasing, transporting and selling natural gas at wholesale and is subject to the control of the Public Service Commission of the State of New York.

Even though organized pursuant to the Business Corporations Law of the State of New York, the petitioner has all the powers and privileges and is subject to all the duties, liabilities and limitations imposed by the Transportation Corporations Law. (Transportation Corporations Law, § 5.) The petitioner is a gas corporation within the meaning of section 10 of the Transportation Corporations Law in that it is "organized to * * * acquire and to supply for public use artificial or natural gas or a mixture of both gases for light, heat or power and for lighting the streets and public and private buildings of cities, villages and towns in this state."

As such a gas corporation, the petitioner has power and authority pursuant to section 11 of the Transportation Corporations Law "* * * to acquire such real estate as may be necessary for its corporate purposes and the right of way through any property in the manner prescribed by the condemnation law." The courts of this State have frequently held that a legislative direction indicating that the use is a public one is to be given the greatest weight. (Matter of Bloomfield & Rochester Natural Gas Light Co. v. Richardson, 63 Barb. 437; Matter of Long Sault Development Co. v. Kennedy, 158 App. Div. 398, affd. 212 N.Y. 1; Matter of City of New York [Ely Ave.], 217 N.Y. 45; Munn v. Illinois, 94 U. S. 113.)

After a declaration of the Legislature of the State of New York, pursuant to a resolution proposed by the...