Public Service Co. v. Shannon

• Decision Date: 09 July 1963
• Citation: 192 A.2d 608,105 N.H. 67
• Parties: PUBLIC SERVICE COMPANY of New Hampshire v. Marion H. SHANNON.
• Court: New Hampshire Supreme Court

Page 608

192 A.2d 608

105 N.H. 67

PUBLIC SERVICE COMPANY of New Hampshire v. Marion H. SHANNON.

Supreme Court of New Hampshire.

Argued June 25, 1963.

Decided July 9, 1963.

Sulloway, Hollis, Godfrey & Soden and Arthur W. Mudge, II, Concord, for plaintiff.

Lawrence J. Walsh, Wolfeboro, for defendant.

KENISON, Chief Justice.

The statute under which the plaintiff acquired an easement over the defendant's land for an electrical transmission line, in pertinent part, reads as follows: RSA 371:1. 'Whenever it is necessary, in order to meet the reasonable requirements of service to the public, that any public utility should construct a line * * * across the land of another * * * and it cannot agree with the owners of such land or rights as to the necessity or the price to be paid therefor, such public utility may petition the public utilities commission for such rights and easements, or for permission to take such lands or rights, as may be needed for said purposes.' This statute in its present form has been extended in scope since the decisions in Thompson v. Manchester Traction, Light and Power Company, 78 N.H. 433, 101 A. 212, and Maine-New Hampshire Interstate Bridge &c. v. Ham, 91 N.H. 179, 16 A.2d 362. While a public utility cannot condemn land without statutory authority, express or implied, condemnation statutes are entitled to a reasonable construction. Leary v. Manchester, 91 N.H. 442, 21 A.2d 156.

RSA 371:1 grants to public utilities 'the power to condemn * * * in broad and very general language.' 1 Powell, Real Property, s. 146, p. 548. It has been long established that supplying electricity is a public purpose for which the power of condemnation may be delegated. McMillan v. Noyes, 75 N.H. 258, 263, 72 A. 759. Rockingham County Light & Power Co. v. Hobbs, 72 N.H. 531, 535, 58 A. 46, 66 L.R.A. 581. The statutory authority of the plaintiff utility to exercise the power of condemnation in the present case is not doubtful. Public Service Co. v. Tenneriffe Development and Recreation Co., 104 N.H. 339, 186 A.2d 154; Annot. 44 A.L.R. 735; 58 A.L.R. 787.

The defendant contends that the peak generating capacity of the Wolfeboro municipal electric department is sufficient for present and future needs; that the contract entered into by the town with the plaintiff results in only minor financial savings; that there is no benefit to the defendant or the town of Tuftonboro in which she lives; and that an existing easement for electric service already over the defendant's land 'is enough to be deemed just and reasonable.' An examination of the record and exhibits in this case supports the implied finding of the Public Utilities Commission that the town of Wolfeboro is a growing community which requires additional electrical capacity particularly during the summer months. The record further indicates that the contract entered into by the town and the plaintiff was the most beneficial arrangement available to that community. While it is true that this was of no benefit to the defendant and of only minor benefit to the town of Tuftonboro, such benefit was not a prerequisite to the exercise of the power of eminent domain by the plaintiff. State v. 4.7 Acres of Land, 95 N.H. 291, 295, 62 A.2d 732. Finally the contention that an existing easement of another utility over the defendant's land precludes this one is not supported by any authority cited by the defendant or discovered by this court. See Latchis v. State Highway Board, 120 Vt. 120, 134 A.2d 191; 1 Nichols, Eminent Domain (3d ed.) p. 392 (1963 supp).

The defendant...