Mississippi Power & Light Co. v. Blake

• Decision Date: 16 March 1959
• Docket Number: No. 41082,41082
• Citation: 236 Miss. 207,109 So.2d 657
• Court: Mississippi Supreme Court
• Parties: , 28 P.U.R.3d 465 MISSISSIPPI POWER & LIGHT COMPANY v. D. C. BLAKE et al.

Page 657

109 So.2d 657

236 Miss. 207, 28 P.U.R.3d 465

MISSISSIPPI POWER & LIGHT COMPANY v. D. C. BLAKE et al.

No. 41082.

Supreme Court of Mississippi.

March 16, 1959.

Dent, Ward, Martin & Terry, Vicksburg, Green, Green & Cheney, Byrd, Wise & Smith, Jackson, for appellant.

Prewitt & Bullard, Vicksburg, for appellees.

LEE, Justice.

This is an appeal by Mississippi Power & Light Company from a judgment of the Circuit Court of Warren County which granted writs of prohibition permanently restraining the Company from proceeding with three eminent domain suits against D. C. Blake and others in the county court.

The Mississippi Power & Light Company was chartered under the laws of the State of Florida with its domicile at Tallahassee in that state. It duly qualified in 1927, and, since that date has been doing business in this State as a public utility for the generation, manufacture, transmission, and distribution of electricity to the public for compensation. On March 29, 1956, it possessed franchises and facilities in forty-six counties and one hundred and thirty-two municipalities, among which were Hinds, Warren, Issaquena and Sharkey Counties, and the Cities of Jackson, Vicksburg and Rolling Fork. Its principal generating plants are located in the City of Jackson and near the Cities of Natchez and Cleveland.

Following the approval on March 29, 1956, of Chapter 372, Laws of 1956, the Power Company, within six months after the effective date of the Act, by filing its application with the Public Service Commission for a certificate of public convenience and necessity, complied therewith and became an established utility with a franchise of public convenience and necessity as provided by Section 5(b) thereof, Section 7716-05(b), Code of 1942, Recompiled.

Thereafter, onn February 19, 1957, the Power Company filed its petition with the Public Service Commission for a certificate of public convenience and necessity to construct a 115 KV transmission line from Vicksburg to Rolling Fork in Warren, Issaquena and Sharkey Counties, to construct a 115 KV sub-station north of Vicksburg, to install suitable terminal facilities at Vicksburg and Rolling Fork, together with related facilities, and for the approval of a contract to furnish electric energy to the Mississippi Valley Portland Cement Company in Warren County. The estimated cost of the improvement was $1,292,000. There was a prayer for the issuance of process, giving reasonable notice of the hearing and the purpose thereof to all interested persons, as, in the judgment of the Commission, might be necessary. A notice to all interested persons of the purport of the petition and the place and date of the hearing, namely, in the office of the Commission in the Woolfolk State Office Building at Jackson, Mississippi, at 10 o'clock A.M. on April 2, 1957, was published by the Secretary of the Commission in the Jackson Daily News on March 7, 1957.

The Yazoo Valley Electric Power Association entered its appearance in the cause and answered that the Mississippi Valley Portland Cement Company was about to construct its plant about 11 miles north of the City of Vicksburg, which location would be within the 'grandfather area' of the Association; but that the Association's supply of electricity was of insufficient adequacy to enable it to serve the plant properly. Consequently it had determined to forego its legal right to serve the plant, and therefore made no objection to the proposal.

On the hearing before the Commission J. D. Phillips, assistant planning engineer of the applicant, testified substantially as follows: The proposed 115 KV line will run from the present Vicksburg sub-station to the present 115 KV sub-station at Rolling Fork. He identified a map which showed the two sub-stations to be built and the line from Vicksburg, through the city and to the cement plant and Rolling Fork, with the cost therefor estimated at $1,292,000. For several years the line had been projected in a forecast. It is needed, together with the existing facilities, in connection with the Rex Brown Steam Electric Station to provide transmission capacities northward, for the use of facilities between Jackson and Vicksburg, thence from Vicksburg to Rolling Fork, and existing facilities from Rolling Fork to Greenville in order to provide a fourth circuit. At present there are only three circuits from Rex Brown, whereas this improvement will provide a fourth circuit to north central Mississippi, and is necessary to handle the total capacity at Rex Brown, and for the system's stability and overall requirements. It is needed for the north Vicksburg area, to give two-way service to Rolling Fork, which is on a mere radio tap line, and to take care of the growth in the area regardless of whether a cement plant is built. More circuits assure greater stability, because if all lines lead from the same generating plant and an emergency arises, all lines could possibly trip. A thorough study of the route had been made. Its estimated length is 51 miles and it would be only about a mile shorter if the cement plant was not to be served. The nature of the area, the avoidance of clearing, and the accessibility for maintenance were the bases for the selection of the proposed route.

V. K. Smith, a registered, professional engineer with the Power Company, testified that, in 1929, the load on the substation in Vicksburg for Warren and Claiborne Counties was less than 3,000 kilowatts. By 1953, it had grown to 14,600, and by 1958 it would reach a total load in excess of 30,000 kilowatts. A sub-station north of Vicksburg is the most economical means of preventing a long haul. The necessary voltage cannot be maintained in hauling large blocks of power over low voltage lines. This has to be done over a transmission rather than a distribution line. Besides a 115 KV line must be available for the cement plant.

Kent B. Diehl, Sr., chief engineer and general manager of Mississippi Valley Portland Cement Company, testified in detail as to the needs and requirements of the plant, showing that electricity is vital because every unit is operated by that kind of power; that the motors have 5,000 horsepower connected load, with the largest operated on a voltage of 4,160 and the others on 440 and 360; that the existing facilities in that area could not take care of their requirements; that a dependable source of power is necessary, and that 340 days a year is the minimum operation; and that a power failure would be disastrous to their operations.

At the conclusion of the hearing, the Public Service Commission, on April 18, 1957, adopted an order awarding the relief prayed for, granted the certificate of public convenience and necessity, and approved the contract to furnish electric energy to the Mississippi Valley Portland Cement Company.

Thereafter the Power Company filed three separate eminent domain proceedings, in the County Court of Warren County, against D. C. Blake and others, against Paul U. Nones and others, and D. C. Blake, Trustee, and others, for the condemnation of lands and a right- of-way, as therein described, in order to effect the completion of the extension and improvement.

The defendants in those suits filed in the circuit court petitions for writs of prohibition under Section 2782, Code of 1942, Recompiled. It was charged that the facts, as alleged in the eminent domain suits, failed to show that the Power Company had any right of eminent domain; that it in fact did not have such right; that their property would be taken for a private and not a public use; and that there was no public necessity for such taking.

The answers of the Power Company thereto denied in detail all of the allegations of the petitions for the writs.

The causes were consolidated and heard together.

The Power Company offered in evidence a certified copy of the proceedings before the Public Service Commission.

V. K. Smith testified that, during the past ten years, there has been a ten percent annual increase in the use of power in the Vicksburg area. A plat showing the Company's operations was introduced. A detailed description of the line showed that there would be a fourth circuit into Vicksburg and a second circuit into Rolling Fork. At present there are three circuits into north and central Mississippi; but, when the Rex Brown Steam Electric Station at Jackson is completed in 1959, a fourth circuit will be required. By extending the circuit from Jackson to Vicksburg, and thence to Rolling Fork, the fourth circuit will thereby be completed. It will also supply the needs of sub-stations en route, the one north of Vicksburg, the one at the cement plant, and any others that may be needed. A thorough study by the Company showed the necessity for this, and that the most economical way would be to build from Vicksburg to Rolling Fork. At present Rolling Fork is on a tap line off of the line running from Rex Brown to Greenville. An accident to the present line could throw that area entirely out of service. But, with the new line, there will be two-way service. The consumers in the Vicksburg area will also have a fourth source of supply, giving a firmer service. He gave a detailed breakdown of the cost. It was determined in 1956 to build this line, and the cement plant of course did not enter into the picture. It was not until January 31, 1957, that the needs of the cement plant came into play. The line from Vicksburg to North Vicksburg has already been completed, and the extended line will stabilize the service because an accident could start a chain reaction that, at present, could trip the other two circuits. The building of transmission lines merely for the cement plant would not be economical. But there has been a great increase in the use of power in and around Vicksburg. The load growth in the North Vicksburg area cannot be served economicially from the sub-station to the south. There are not distribution...