Levin v. Philadelphia Electric Power Co.

• Decision Date: 24 July 1929
• Docket Number: No. 4223.,4223.
• Citation: 34 F.2d 224
• Parties: LEVIN et al. v. PHILADELPHIA ELECTRIC POWER CO.
• Court: U.S. District Court — Western District of Pennsylvania

34 F.2d 224 (1929)

LEVIN et al. v. PHILADELPHIA ELECTRIC POWER CO.

No. 4223.

District Court, E. D. Pennsylvania.

July 24, 1929.

Monaghan, Levinthal, Schofield & Kraus, of Philadelphia, Pa., for plaintiff.

William Clarke Mason, of Philadelphia, Pa., for defendant.

DICKINSON, District Judge.

The plaintiffs assert a twofold cause of action. The defendant is a licensee or permittee under the provisions of the Act of Congress of June 10, 1920 (16 USCA §§ 791-823). As such it has constructed a dam and power plant at Conowingo, on the Susquehanna river. It likewise possesses the franchise to construct, maintain, and operate a transmission or distribution line, with the added right to exercise the power of eminent domain in acquiring the use of land for its corporate purposes. This franchise is conferred by the laws of Pennsylvania. The construction of the dam of necessity results in an interference with the common use of navigable waters. Whatever its basis, this is a subject admittedly within the jurisdiction of the United States. Just as clearly the transmission line is the subject of the laws of the state of Pennsylvania. As Congress could grant or withhold a license to obstruct the navigation of the river, it could impose any conditions upon the grant of the license, and a condition which it has imposed is that the defendant by the acceptance of the license assumed liability for all damages which may flow, not merely from the construction, but likewise from the maintenance and operation of "the project." The state law (Const. Pa. art. 16, § 8) gives the right to compensation for land "taken, injured or destroyed" by the defendant in the construction of its transmission line, but withholds all right to compensation for damage which results solely from the operation of the line in pursuance of the corporate business in which the defendant has been granted the lawful right to engage.

The plaintiffs are the owners of lands away from but so near the line of the defendant as that they claim they will be damaged by the operation of the line in such close proximity. They further assert a real estate interest in some of the lands upon which the transmission line is constructed, in that the land thus occupied is subject to an easement of the plaintiffs therein created by the circumstance that the lands in the use of the defendant and the lands of the plaintiffs are parts of a large tract of land, all parts of which were by appropriate covenants running with the land made mutually servient to all the lands of the several grantees of the common grantor.

The defendant acquired the lands within its right of way in part by deeds of conveyance and in part through condemnation proceedings, but with notice, constructive and actual, of all the rights of the plaintiffs.

The condemnation proceedings referred to are pending in the court of common pleas of Chester county, Pa., but the plaintiffs have not made themselves parties thereto.

The act of Congress gives concurrent jurisdiction to the courts of the United States and of the states to enforce all rights therein granted.

The instant bill presents two causes: (1) That given by the act of Congress, and (2) that given by the laws of the state founded upon the easement which the plaintiffs have in the lands within defendant's right of way.

There is no diversity of citizenship.

The primary prayer of the bill is for a preliminary injunction to restrain the...