In re Approval of Bond of Peoples Natural Gas Co.

• Decision Date: 22 April 1960
• Citation: 160 A.2d 391,399 Pa. 226
• Parties: In re: APPROVAL OF BOND OF PEOPLES NATURAL GAS COMPANY and Surety under Right of Eminent Domain to L. G. Curry and Marian L. Curry, his wife. Appeal of PEOPLES NATURAL GAS COMPANY.
• Court: Pennsylvania Supreme Court

160 A.2d 391

399 Pa. 226

In re: APPROVAL OF BOND OF PEOPLES NATURAL GAS COMPANY and Surety under Right of Eminent Domain to L. G. Curry and Marian L. Curry, his wife. Appeal of PEOPLES NATURAL GAS COMPANY.

Supreme Court of Pennsylvania.

April 22, 1960.

Rehearing Denied May 16, 1960.

William H. Eckert, Robert M. Jacob, Milton W Lamproplos, Donald C. Winson, Eckert, Seamans & Cherin Pittsburgh, for appellant.

John A. Metz, Jr., Guy L. Warman, Metz, Cook, Hanna & Kelly Pittsburgh, for appellee.

Before MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.

MUSMANNO Justice.

Some time prior to May, 1958, the Peoples Natural Gas Company (hereinafter to be referred to as the Gas Company) decided to lay a 24-inch gas pipe line from McKeesport in a southwardly direction toward the State of West Virginia. One of their engineers, Vincent G. Phelleps, was placed in charge of surveying and constructing the line from McKeesport to a place called Gibson Station, near Charleroi. Phelleps started surveying the line from the McKeesport end on May 12, 1958 and on May 15, 1958, arrived at a property belonging to Mr. and Mrs. L. G. Curry in Elizabeth Township, Allegheny County. Here he proceeded to mark the course which was to be followed by those who were to actually lay down the pipe. He did this by driving stakes into the ground, at approximately 100-foot intervals, (with special stakes where the terrain might require it,) across the property. Having completed this operation, he proceeded to draw up a description of the line with measurements so that the Gas Company could, in the exercise of eminent domain, condemn the property (4.06 acres) to be occupied by its conduits, lay the pipe, and pay the property owners for the land taken.

In preparing the description, Engineer Phelleps made an error. In the area of the western limits of the Curry property, he encountered a dirt roadway bordered on the right by a row of trees. At the bottom of the Curry driveway, which debouched on to a thoroughfare called Constitution Boulevard, he found a stone which he assumed marked the northwestern extremity of the Curry property.

He was further led to believe that the driveway and the indicated stone marked the margin of the Curry property because on the eastern side of the driveway, the terrain was hilly, irregular and abounded with bushes, unaligned trees and rough growth, whereas, on the western side of the driveway, and in juxtaposition to the row of trees heretofore mentioned, the terrain dramatically changed to a smooth, well-kept lawn extending for a distance of some 30 feet to a handsome brick house, whose beautiful yard it might well have been. The brick house belonged to the Clyde Jones family which, in point of fact, however, owned only a strip 5.6-foot wide on the eastern side of the house. Although there is no explanation in the record about this, it is quite probable that the Joneses, rather than the Currys, maintained and cared for the lawn, even though they had no title to the land on which it flourished.

Be that as it may, Phelleps made the mistake of accepting the above-identified stone as the northwestern extremity of the Curry property and wrote up his description accordingly. He reported to the Gas Company that the distance between the assumed northwestern end of the Curry property and the staked-out pipe line measured 232 feet.

The Gas Company filed a petition in the Court of Common Pleas of Allegheny County for approval of a bond to ensure payment to the Currys of the amount eventually to be paid for the appropriated easement and right of way.

However, after the petition and bond were duly approved, the mistake made by Phelleps came to light. Engineers for both the Gas Company and the Currys met on the land and agreed that the northwestern extremity of the Curry property was not the stone chosen by Phelleps but a point 25.3 feet further away. Thus, the distance between this correct point and the staked line was 257.3 feet instead of the 232 feet mentioned in the bond.

The Gas Company then went into Court and filed a petition to amend its approved bond to show the correct description. The Currys opposed the petition.

The matter came on for hearing in the Court of Common Pleas which dismissed the petition to amend, and the Gas Company appealed. It is the position of the Currys that the Gas Company must be held to the description contained in the unamended bond because when the bond was filed, title to the right of way described therein automatically passed to the Gas Company and it is therefore liable for the taking of the condemned 4.06 acres, as described. This being so, they urge a right to additional compensation for the land which they say would be taken under the amended description sought to be filed in the second proceedings.

But all this assumes what is not true, namely, that two different pieces of land were intended to be condemned. It must be made quite clear at the threshold of discussion that the taking of only one strip of land was ever contemplated, that only one ditch was ever dug, that only one pipe line was ever laid over the Curry property, and that the Gas Company does not intend to lay any other pipe line over the Curry property. It must be equally emphasized that the one and only piece of land marked for condemnation was always the same terra firma marked out and staked on the property.

The Currys were never deceived with regard to the exact location of the pipe line. Not a single spadeful of earth was removed except where the stakes were driven along the route marked on the occasion of the one and only visit Phelleps made to the Curry property for the purpose of staking out the course of the pipe line.

The appellee landowners state that since the real northwest corner of their property is a point that is mathematically and geographically fixed, even though Phelleps assumed it to be 25.3 feet further east than it actually was, the right of way condemned in the bond was a right of way different from the one used for the pipe line. Thus, they argue in their brief that the Gas Company----

'wants to abandon the right of way taken by it and substitute in lieu thereof another right of way, without payment of compensation to the owners for the first right of way taken.'

But this is an argument resting on shadows since the Gas Company never substituted one right of way for another. There is no pipe line 232 feet east of the northwest corner of the Curry property and there never was. Nor was there any intention on the part of the Gas Company to lay one there. And once the amended bond is filed, the phantom right of way, which has a nebulous existence only because of an inaccurate description, will vanish as any mistake on paper vanishes when the eraser is applied.

All the Gas Company desires to do is to amend the description of the property which appears in the bond. This is not an extraordinary procedure. Lewis in his work on Eminent Domain states (2 Lewis, § 51):

'The practice of allowing amendments is one which should find favor with the courts, since it saves time and expense, both to the public and to the parties involved * * *. Amendments have been allowed * * * changing the description of a highway asked for, though on appeal, so as to conform to the way actually laid out and evidently intended to be asked for. * * *'

Another authority (Randolph on Eminent Domain, § 354), states:

'The petition may be amended not only in formal matters, but to rectify substantial errors and omissions. Thus the petition may be amended * * * by altering the description of the property in question. * * *'

The Gas Company simply wishes to correct a mistake, the correcting of which will harm no one. The law is not the harsh, rigid, unrealistic, unreasoning despot it was once assumed to be. The law no longer impales a litigant on a misplaced comma, nor will his rights be decapitated because of the improper crossing of a 't'.

To uphold the appellees' position here would work a palpable absurdity. It would create a No-Man's Land through the Curry property which the Currys could not use, the Gas Company does not need or want (since it has already laid its pipe), and which no other person could possibly need or want. To what possible use could anyone put a subterranean 24"' hole through someone else's land?

The appellees insist on being loyal to a mistake. To adhere to error when it stands out like an iceberg at sea is like proceeding head-on into disaster because a pre-determined course of the ship passes through the space occupied by the iceberg.

The argument maintained by the appellees in this case was similarly advanced by the property owner in Boyd v. Negley, 53 Pa. 387, but it was not accepted by this Court. In that case Felix C. Negley, owner of a coal mine, built a lateral railroad over land owned by Mary M. Lloyd. Mrs. Lloyd petitioned the court to order a removal of the railroad because it had been built on a location different from the one described in Negley's original petition to the Court. Replying to Mrs. Lloyd's contentions when the case reached this Court, Justice Strong, speaking for the Court said: 'It is said the route upon which the railroad has been built does not correspond with the route described in the petition. There is no substantial variance between the line of construction and the line of location, as it was surveyed and marked upon the ground. But there is a slight variance between that line and the description of it contained in the petition. A mistake was manifestly made in the description. But the true and authorized line of the road, is that which was surveyed by the petitioner of the line. The mistake in this case was the omission of one section about 30 feet in...