West v. Maryland Gas Transmission Corp.

• Citation: 159 A. 758,162 Md. 298
• Decision Date: 08 April 1932
• Docket Number: 42.
• Parties: WEST ET AL., PUBLIC SERVICE COMMISSION, v. MARYLAND GAS TRANSMISSION CORPORATION.
• Court: Court of Appeals of Maryland

159 A. 758

162 Md. 298

WEST ET AL., PUBLIC SERVICE COMMISSION, v. MARYLAND GAS TRANSMISSION CORPORATION.

No. 42.

Court of Appeals of Maryland

April 8, 1932

Appeal from Circuit Court No. 2 of Baltimore City; Samuel K. Dennis Judge.

Suit by Maryland Gas Transmission Corporation against Harold E. West J. Frank Harper, and Steuart Purcell, constituting the Public Service Commission of Maryland. From order overruling demurrer to plaintiff's bill, defendants appeal.

Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

William Cabell Bruce and John Henry Lewin, both of Baltimore, for appellants.

James Piper and Francis J. Carey, both of Baltimore (Piper, Carey & Hall, of Baltimore, on the brief), for appellee.

DIGGES J.

On July 8, 1931, the appellants, the public service commission of Maryland, passed the following order: "Ordered: (1) That Maryland Gas Transmission Corporation be and it hereby is directed and required forthwith to obtain proper franchises to lay, maintain and operate its pipes under the public roads crossed by the line of the said Maryland Gas Transmission Corporation, and to present the said franchises to the Commission for its permission and approval, as by law required. (2) That a copy of this order be forthwith served upon the said Maryland Gas Transmission Corporation, and that the said corporation within ten (10) days of the date of the service of such copy shall notify the Commission in writing whether or not it will accept and abide by the same."

In response to said order the appellee, on July 15, 1931, notified the commission in writing that it would not accept and abide by the order, but proposed within the time limited by statute to bring a proceeding to vacate and set aside said order. Thereafter on September 5, 1931, the appellee filed its bill of complaint in the circuit court No. 2 of Baltimore city, praying that the said order of the commission be vacated and set aside. On September 11th the commission demurred on the ground that the complainant had not stated such a case as entitled it to any relief in equity. On December 3, 1931, the chancellor passed an order overruling the appellants' demurrer to the bill of complaint, with leave to answer. The appellants declined to answer, and the appeal in this case is from the order overruling the demurrer.

For the purposes of the demurrer we must accept the allegations of fact contained in the bill of complaint as true, the substance of which may be stated as follows: That the plaintiff is a corporation duly organized and existing under the laws of the state of Delaware; that it caused to be constructed during the months of September, October November, and December, 1930, and January, 1931, a gas transmission line from a point on the boundary between the states of Maryland and Pennsylvania, two miles east of the Susquehanna river in Cecil county, Md., for a distance of approximately 74 miles in a fairly straight direction, to a point about two miles northwest of Rockville, Montgomery county, Md.; that this line has been maintained and operated by the plaintiff at all times since January 30, 1931; that subsequently it caused to be constructed an extension of said pipe line to a point on the boundary between the states of Maryland and Virginia, about five miles southwest of Rockville, which line has been maintained and operated by the plaintiff at all times since May 30, 1931; that the total length of said pipe line, including extension, is approximately 79 miles; that said pipe line passes through a small portion of Cecil county and across the counties of Harford, Baltimore, Howard, and Montgomery, in the state of Maryland; that the pipe line was constructed for the plaintiff by the Columbia Gas Construction Company, a Maryland corporation. That the plaintiff is a public utility corporation engaged in the business of transmitting gas at high pressure into, through, and from the state of Maryland and of selling gas so transmitted by it to other corporations, public or private, or persons, firms, associations, or other organizations which are now or may hereafter be engaged in the business of selling gas to the public in the state of Maryland, the District of Columbia, or elsewhere; that the plaintiff has not transmitted or sold, and does not intend to transmit or sell, any gas in Maryland, except gas purchased by it at high pressure at the Maryland-Pennsylvania state line or at the Maryland-Virginia state line; that the plaintiff has not sold, and does not intend to sell, any gas except at high pressure and except to corporations, public or private, or persons, firms, associations, or other organizations not affiliated with the plaintiff, which are or may hereafter be engaged in the business of supplying gas to the public in Maryland, the District of Columbia, or elsewhere, and to affiliated corporations at the Maryland-Pennsylvania state line and at the Maryland-Virginia state line; that the plaintiff has not been engaged, is not engaged, and does not intend to engage in any business in Maryland except the business aforesaid; that the gas so transmitted by the plaintiff is natural gas and will be transmitted at a maximum pressure of 450 pounds per square inch. That said pipe line passes through no incorporated towns or villages, but solely through strictly country properties, 247 in number, and upon rights of way acquired by purchase from the various landowners by the plaintiff and conveyed to it by deeds properly executed, acknowledged, and recorded; that said pipe line is, however, at several points where it crosses under public roads, within a mile or two from several small towns or villages, one of which, namely Rockville, is incorporated, but all said roads at said crossings are strictly country roads. That said pipe line has been laid and is now being maintained and operated by the plaintiff across and under a number of public roads, both improved and unimproved, in the said counties; that said public roads have been acquired by the public authorities, but for road purposes only, by condemnation, grant, or prescription; that, in cases where proceedings or grants have not been found relating to such roads, they have in every instance been utilized and are now utilized by the public as public roads, have been and are controlled and maintained by the respective county commissioners or other public authorities, and are in fact public roads. That the plaintiff has taken from every owner of land abutting on each of said public roads, where the pipe line of the plaintiff crosses under the same, a deed granting to it a right of way thereunder; that the fee of each of said roads where the pipe line of the plaintiff crosses under the same was, on the respective dates of said deeds, owned by the respective abutting owners from whom the plaintiff obtained said deeds, subject, however, to the public easement therein of passage and its incidents; that said pipe line across and under said roads is in all cases laid within the rights of way granted by said deeds and in accordance with the terms thereof. That in no case does said pipe line run along any such road, nor is it the intention of the plaintiff to supply any gas in any such road to others or to construct any lateral or branch line along any such road; that the only relation of such roads, or any of them, to said pipe line, is that of obstacles which have to be crossed, and said pipe line is placed thereunder solely for the purpose of crossing the same; that in some cases the pipe line is as near to the surface of the road as twenty inches, but does not interfere in any way with the use of any of said roads at existing or presently proposed grades by the public for passage, or with the fitting or maintaining of any of such roads at existing or presently proposed grades for passage by the public. That the plaintiff obtained from the county commissioners of each of the five counties, in which its said pipe line is laid, permits to construct said pipe line across and under the public county roads in the respective counties, and also obtained from the state roads commission permits to construct its said pipe line across and under the public roads known as state roads. That the pipe line was physically constructed in strict compliance with the rules and regulations governing such physical construction of the state roads commission and of the county commissioners of the five counties through which its line passes, including the requirements set forth in the several permits, and in strict compliance with the directions of the engineers supervising the work on behalf of the public authorities by which such permits were issued; that said line is of the best and most modern construction and of indefinite life and utility, and will in all probability be utilized continuously by the plaintiff, or its successors or assigns, in its present location for the next hundred years or more, subject to changes required by relocation of roads and changes of grades of roads. That, promptly upon the organization of the plaintiff, it presented to the defendant a copy of its certificate of incorporation, together with all information with respect to its plans which the plaintiff believed to be material, and all additional information with respect thereto which it was requested to give; that subsequently the defendant submitted said certificate of incorporation and said information, or such part thereof as it deemed to be relevant, to its general counsel with the request that he advise the commission whether or not it should require the plaintiff to apply to it for its permission and approval under section 390 of article 23 of the Code (1929 Supplement); that in an opinion...