Northeastern Gas Transmission Co. v. Collins

• Citation: 87 A.2d 139,138 Conn. 582
• Court: Supreme Court of Connecticut
• Decision Date: 06 March 1952
• Parties: NORTHEASTERN GAS TRANSMISSION CO. v. COLLINS et al. Supreme Court of Errors of Connecticut

Page 139

87 A.2d 139

138 Conn. 582

NORTHEASTERN GAS TRANSMISSION CO. v. COLLINS et al.

Supreme Court of Errors of Connecticut.

March 6, 1952.

David S. Day and Daniel F. Wheeler, Bridgeport, W. Arthur Countryman, Jr., Hartford, and Arthur C. Williams, Bridgeport, for the plaintiff.

James N. Egan, Hartford, Dennis P. O'Connor, Hartford, for the defendants.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

O'SULLIVAN, Associate Justice.

Upon this reservation for the advice of this court, it was stipulated that the following facts were found by the trial court. The plaintiff is a Delaware corporation engaged in the business of supplying natural gas by pipe line. It holds a certificate of public convenience and necessity issued by the federal power commission pursuant to the provisions of the Natural Gas Act of 1938. 52 Stat. 821, 15 U.S.C. § 717 [15 U.S.C.A. § 717], as amended 61 Stat. 459, 15 U.S.C. § 717f(h) (Sup. 4, 1951) [15 U.S.C.A. § 717f]. The certificate authorizes the plaintiff to construct and operate natural gas pipe lines and appurtenant facilities in Connecticut and to sell its product to specified public utility corporations now engaged in distributing gas to the public in various sections of the state.

The plaintiff is presently engaged in acquiring easements needed in the laying of a proposed pipe line within the state. The line, as planned, is to cross the defendants' property in the town of Farmington. The plaintiff is seeking to obtain therein a right of way fifty feet in width. Only the inner thirty feet are sought for a permanent easement. The outer ten feet on each side are needed solely for the purpose of providing ample space for the movement of heavy equipment used in the installation of the pipe. The temporary interest in these ten-foot strips will automatically expire one year from the completion of the construction work on the defendants' property but, in any event, not later than two years after the interest has been acquired.

In 1950 the General Assembly passed an act entitled 'An Act concerning Natural Gas Pipe Line Companies.' Public Act No. 3, Spec.Sess., March, 1950; General Statutes, Cum.Sup.1951, §§ 1072b-1078b. Pursuant thereto, the plaintiff has qualified as a corporation authorized to exercise the power of eminent domain. Through its board of directors it has formally declared that the easements mentioned above are necessary for the installation of its pipe line. Since the parties cannot agree upon the value of the property to be taken, the plaintiff has filed its petition in the Superior Court praying that a committee of three disinterested persons be appointed to assess just damages, and asking for an order permitting the plaintiff to enter upon the defendants' land to make a survey of the right of way.

The parties seek our advise on the two questions stated in the footnote. ¹ The first requires us to determine the validity of the act of 1950 to which we have just referred. The act, as passed, consists of eight sections. The first recites that any corporation organized under state or federal law for the purpose of constructing and operating a natural gas pipe line is authorized to acquire by condemnation variously described interests in land which are necessary for the construction, maintenance and alteration of the pipe line, provided the corporation holds a certificate of public convenience and necessity issued under the federal Natural Gas Act, and provided, further, that the corporation shall pay all damages for the taking. Section 2 makes the exercise of the right of eminent domain contingent upon the filing with the secretary of state of a certified copy of the certificate of public convenience and necessity issued under the federal act and, if the corporation is not a domestic one, upon its qualifying to do business in this state. Section 3 enumerates certain lands and interests which are granted immunity from condemnation. Section 4 sets up legal procedure for the corporation to follow to obtain a judicial determination of the value of the property taken, should the parties be unable to reach an agreement thereon. Section 5 designates the circumstances under which, and the method by which, the court may permit the corporation to gain immediate possession of the land. Section 6 deals with the manner in which the line shall be constructed. Section 7 forbids the sale of gas in any area within which another is doing so under a franchise, unless that other gives its consent or the sale is permitted by the public utilities commission. Section 8 provides that the act shall take effect upon its passage.

The defendants have assailed the constitutionality of the act. When a question of that nature is raised, we should approach it with great caution and examine it with infinite care. We must make every presumption and intendment in favor of the act and sustain it unless it is invalid beyond reasonable doubt. Mills v. Gaynor, 136 Conn. 632, 637, 73 A.2d 823; Lyman v. Adorno, 133 Conn. 511, 514, 52 A.2d 702; Walkinshaw v. O'Brien, 130 Conn. 122, 134, 32 A.2d 547; Beach v. Bradstreet, 85 Conn. 344, 349, 82 A. 1030.

It is a fundamental principle of law that the power to appropriate private property for public use is an attribute of sovereignty and essential to the existence of government. 1 Nichols, Eminent Domain (3d Ed.) §§ 1.14, 3.1; 18 Am.Jur. 635, § 7. It attaches to every man's land and is paramount to his right of ownership. Water Commissioners v. Johnson, 86 Conn. 151, 164, 84 A. 727, 41 L.R.A.,N.S., 1024. It lies dormant in the state until set in motion by legislative enactment. Clark v. Saybrook, 21 Conn. 313, 324. The legislature itself may exercise the power or may delegate that right to another. New York N.H. & H. R. Co. v. Long, 69 Conn. 424, 435, 37 A. 1070. But, whether exercised by the one or the other, the use of the power is always subject to the prohibitions found in the state constitution that (1) private property shall not be taken for public use without just compensation, and (2) no person shall be deprived of his property without due course of law. Conn.Const.Art. 1 §§ 9, 11.

The defendants' claims are stated in the footnote. ² Several of them seem to indicate concern only with the phraseology of the act. Some, it will be observed, appear more to challenge form than to question substance. It is urged, for example, that the act is unconstitutional because it contains no express declaration that the transmission and the sale of natural gas are to serve a public use. A positive declaration of that nature, however, is not essential. As long as the act (§ 1) provides that the plaintiff may take 'such lands, rights of way, easements or other interests in land' as are necessary for the installation and operation of pipe lines, the General Assembly has declared, in effect, that the property to be so taken is for a public use. New York, N.H. & H. R. Co. v. Long, supra, 69 Conn. at page 436, 37 A. 1070. This follows from the fact that the mere delegation of authority to condemn has always been considered a sufficient declaration that the use is public. See State v. McCook, 109 Conn. 621, 626, 147 A. 126, 64 A.L.R. 1453; Water Commissioners v. Johnson, supra, 86 Conn. at page 157, 84 A. 727.

Nor is the act invalid because it fails to declare the necessity for condemning the defendants' property. It is, of course, true that the necessity of taking property for a particular public use is a legislative question. City of Waterbury v. Platt Bros. & Co., 76 Conn. 435, 440, 56 A. 856. This does not require the General Assembly to resolve the question in every instance, although it may do so if it wishes. Water Commissioners v. Manchester, 89 Conn. 671, 679, 96 A. 182. It may, however empower another agency to determine what property is necessary for the public use, ad it did in passing the act of 1950. See Adams v. Greenwich Water Co., 138 Conn. 205, 213, 83 A.2d 177. Such a delegation of power is not objectionable on constitutional grounds and is thoroughly approved. Water Commissioners v. Johnson, supra, 86 Conn. at page 158, 84 A. 727.

Another claim is that the act imposes no duty upon the plaintiff to apply the condemned land to any public use. If by this the defendants mean that after acquiring a right of way in their lands the plaintiff may decide to use it, say, as a section of a race track or for some objective equally foreign to the purpose for which the property is to be taken, it is sufficient to observe that an obligation to devote the easement to the specified public use authorized by the legislature grows out of the acceptance and exercise of the delegated power of eminent domain. Water Commissioners v. Manchester, 87 Conn. 193, 200, 87 A. 870. Any legal obligation may, of course, be dishonored. That is one reason why courts exist. Should the plaintiff breach its duty in the manner suggested, there is ample judicial machinery available to the defendants to rectify the wrong. A claim of the nature under discussion can be made in almost every condemnation case. It amounts to nothing more than a legal bugaboo. By exercising the power of eminent domain granted by the act, the plaintiff becomes bound to devote the property acquired to the purpose for which the legislature has authorized the taking, namely, the transmission of natural gas for sale as specified.

It is further claimed that the act is invalid because the plaintiff is not to supply gas directly to the public. Under the certificate issued by the federal power commission, the plaintiff may sell its product in Connecticut only to certain specified utility corporations already engaged in distributing gas to the public, without discrimination, within the areas served by them. A taking of property for this authorized purpose is none the less a taking for public use. Matlock v. Bloomington Water Co., 196 Ind. 271, 279, 146 N.E. 852, 148 N.E. 198; Calor Oil...