Monongahela West Penn Public Service Co. v. Monongahela Development Co.

• Decision Date: 03 February 1925
• Docket Number: 5143.
• Citation: 127 S.E. 23,98 W.Va. 136
• Parties: MONONGAHELA WEST PENN PUBLIC SERVICE CO. v. MONONGAHELA DEVELOPMENT CO.
• Court: West Virginia Supreme Court

127 S.E. 23

98 W.Va. 136

MONONGAHELA WEST PENN PUBLIC SERVICE CO. v. MONONGAHELA DEVELOPMENT CO.

No. 5143.

Supreme Court of Appeals of West Virginia.

February 3, 1925

Submitted June 6, 1924.

Rehearing Denied April 1, 1925.

Syllabus by the Court.

By subdivision 10a, § 50, c. 54, Code, a corporation chartered as a railroad company, and engaged in the operation of street or interurban railroads by electricity, or any motive power other than steam, is given the status of a power company entitling it, under clause 6, § 2, c. 42, Code, to exercise the right of eminent domain.

Error to Circuit Court, Monongalia County.

Application by the Monongahela West Penn Public Service Company to condemn an easement across the lands of the Monongahela Development Company. The applicant's right to condemn was sustained, and defendant brings error. Affirmed.

Minter L. Wilson and Glasscock & Glasscock, all of Morgantown, for plaintiff in error.

Cox & Baker, of Morgantown, for defendant in error.

LITZ J.

The applicant, Monongahela West Penn Public Service Company, is a domestic corporation chartered as a railroad company under section 32, c. 54, Code. It owns and operates as a common carrier an electric railway system in Marion, Harrison, and Lewis counties, W.Va., and also furnishes electric light heat, and power to cities, towns, and villages, and to domestic, commercial, and industrial consumers in said counties, and the counties of Taylor and Barbour of this state. It also produces the electricity required for these purposes by a steam plant at Rivesville, Marion county, and transmits the same for distribution over a main transmission line, numerous branch lines, and service connections. The applicant seeks to condemn an easement across the lands of defendants situated in Monongalia county, in the construction and maintenance of a main transmission line to be used for the conveyance of electricity in its public service business. The land owners resist the right of applicant to condemn setting up as the only ground worthy of consideration that the latter has no power under its charter or the general law to exercise the right of eminent domain as a power company engaged in the business of furnishing electricity to the public. In the case of Monongahela West Penn Public Service Co. v. C. F. Cunningham Co., 127 S.E. 61 decided contemporaneously herewith, this defense is held to be untenable by reason of ...