N. States Power Co. v. Pub. Serv. Comm'n

• Decision Date: 19 December 1944
• Parties: NORTHERN STATES POWER CO. v. PUBLIC SERVICE COMMISSION et al.
• Court: Wisconsin Supreme Court

246 Wis. 215

16 N.W.2d 790

NORTHERN STATES POWER CO.

v.PUBLIC SERVICE COMMISSION et al.

Supreme Court of Wisconsin.

Dec. 19, 1944.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Reversed.

Action commenced January 25, 1943, by Northern States Power Company, a Wisconsin corporation, plaintiff, against the public service commission of Wisconsin and Eugene W. Murphy, defendants, brought under the provisions of sec. 196.41, Stats., to set aside an order of the public service commission entered December 17, 1942. The judgment appealed from, entered June 6, 1944, vacated and set aside as unreasonable and unlawful the order of the defendant commission directing the plaintiff, Northern States Power Company, to furnish heating service to the residence of the defendant Murphy in the city of La Crosse. Both defendants have appealed from that judgment.

The findings are in substance as follows: That plaintiff has for many years, as a public utility, operated a circulating hot water central heating service in the city of La Crosse; that it holds an indeterminate permit so to do and does occupy the streets of said city for water mains over which its heating service is made available to customers; that on December 17, 1942, the defendant public service commission made an order requiring plaintiff to extend its hot water heating service to the residence of the defendant Murphy, which residence abuts on an alley where is located one of the plaintiff's distribution mains, and which residence is located at the easterly extremity of the plaintiff's system; that service to said residence was discontinued in 1913; that plaintiff applied for a rehearing, which was denied; that upon the trial additional evidence was received and the record was remanded to the commission, pursuant to sec. 196.44, Stats.; that on October 14, 1943, the commission affirmed the order of December 17, 1942; that plaintiff's hearing service is by its nature inflexible and is not adaptable to adding service after capacity has been reached; that at the time defendant Murphy applied for service, plaintiff's system had reached its capacity; that plaintiff has for more than twenty years maintained a consistent policy of adding no new customers to its said system except those who could be served from the existing facilities, and has limited its ‘holding-out’ to customers who could be served from existing facilities; that in 1940 plaintiff filed with defendant public service commission its heating ‘undertaking’ wherein it stated, with reference to the hot water heating service, effective in La Crosse, that same was available for space heating to residential and commercial customers located within the area designated on a certain map attached thereto, provided that service from existing mains would be adequate for the customers to be served; that the commission approved of this undertaking in its order dated August 12, 1940; that the order of the commission requiring plaintiff to extend its heating service to the defendant Murphy is void because said service is not within plaintiff's undertaking to serve; that said order is unreasonable because of the inflexible nature of plaintiff's hot water heating system, and is unreasonable because additional service is not available without the expenditure of large sums of money upon which no return could be expected; that said order is unreasonable because the extension of plaintiff's system is not in a substantial public interest.

As a conclusion of law the court found that the said order of the defendant public service commission is unlawful and void and should be wholly vacated and set aside.

From a judgment accordingly entered on June 6, 1944, defendants appeal. Further material facts will be stated in the opinion.John E. Martin, Atty. Gen., and H. T. Ferguson, Asst. Atty. Gen., for appellant Public Service Commission.

Philip H. Porter, of Madison (Arthur T. Holmes, of La Crosse, of counsel), for appellant Murphy.

Ramsdell, King & Linderman, of Eau Claire, and Jonathan C. Bunge, of La Crosse, for respondent.

MARTIN, Justice.

It appears that plaintiff is operating a heating utility system in the city of La Crosse, pursuant to an indeterminate permit resulting from a franchise granted by the city to the Edison Light & Power Company, a predecessor in interest of the plaintiff. Under that franchise the plaintiff has the right to use the public streets and alleys of the city for the construction and maintenance of its mains or pipes through which hot water is circulated for the furnishing of heat to the members of the public served by the utility.

The heating system consists in general of a central heating plant operated in connection with the electric utility plant owned and operated by the plaintiff in the city of La Crosse; and of mains or pipes laid in various streets and alleys of the city which are used to convey water heated at the central plant to and from the various premises where heating utility service is furnished. Mains of the utility are laid generally throughout the central or business portion of the city, which extends from the Mississippi river as far east as 6th or 7th street, approximately a distance of three-fourths of a mile. East of 6th street the main extends to King street to a point between 14th and 15th streets, just east of an alley which joins King street between 14th and 15th streets. A lateral belonging to the utility extends through the alley a distance of four hundred twenty-eight feet to the north, and is used to furnish heat to the residence of one Dr. McGarty, whose premises are situated near the north end of said lateral. Both the feed and return pipes of this lateral, for a distance of one hundred ninety-six feet from the King street main, have or had originally an inside diameter of three inches. The remainder of the lateral consists of feed and return pipes which had originally an inside diameter of two inches.

The premises owned by defendant Murphy, for which service was requested and required to be given by the order in question, abut on the alley between 14th and 15th streets, and are situated more than two hundred feet north of King street, so that if connection were made to the existing lateral it would have to be made to the portion thereof whose pipes are two inches in diameter. Prior to the commencement of a proceeding in which the order under review was made, the defendant Murphy requested the plaintiff to furnish his premises with its utility heating system. Such request was refused or denied and thereupon he filed his complaint with the commission, alleging such request and refusal of service.

Plaintiff sought to justify its refusal on the ground, among others, that it would be impossible to maintain a differential in pressure in the lateral in the alley if service should be furnished to Murphy and adequate service should at the same time continue to be furnished to the residence of Dr. McGarty, a few hundred feet to the north. The operating efficiency of any connection to the heating mains or laterals depends on the ability of plaintiff to so operate its facilities as to maintain a differential in pressure between the feed and return pipes of the utility mains or laterals with which a connection is made to any premises for which heating is furnished. Unless such differential is maintained the hot water in the pipes of the mains and laterals will not flow; and this prevents the giving off of heat in the radiators in the premises connected with such mains or laterals.

The lateral in the alley between 14th and 15th streets was laid about the year 1900. The ordinary service life of any two-inch or three-inch pipe in any lateral maintained by plaintiff in the city of La Crosse is between thirty and forty years. In that length of time the pipe becomes so encrusted that its effective diameter is measurably decreased. In the usual course of procedure the lateral in the alley between 14th and 15th streets will have to be replaced if service to Dr. McGarty is to be continued, regardless of whether service shall or shall not be given to defendant Murphy. The premises now owned by defendant Murphy and for which he demanded the utility service were formerly furnished with heat from the plaintiff's utility system by connection with the lateral in the alley above mentioned. At one time there were three houses which received plaintiff's heating service by means of this lateral. The house owned by Dr. McGarty is the only one now receiving such service.

Plaintiff's engineer testified that if the lateral in the alley between 14th and 15th streets should be replaced with pipes of their original or a larger diameter, it was at least possible that service could be given to defendant Murphy and adequate service still continued to Dr. McGarty. He testified that the cost of this replacement would be about $3,280. Other engineers testified that the replacement of the lateral would be sufficient to enable plaintiff to render adequate service to both Dr. McGarty and defendant Murphy; that if a booster pump were installed on the King street main not far from 15th street, plaintiff would be enabled to furnish adequate heating service not only to Dr. McGarty and defendant Murphy, but to several more customers in the immediate vicinity of King and 15th streets, if they should apply to the plaintiff for service.

It further appears that about 1920 plaintiff inaugurated a policy of discouraging requests for service by persons not presently receiving service. In 1922 the proprietor of a bowling alley made request for service which was refused; the matter came before the commission; the petition was dismissed ‘because of the...