White Mountain Power Co. v. Whitaker

• Decision Date: 05 October 1965
• Citation: 213 A.2d 800,106 N.H. 436
• Parties: , 61 P.U.R.3d 166 WHITE MOUNTAIN POWER COMPANY v. Charles W. WHITAKER et al.
• Court: New Hampshire Supreme Court

Page 800

213 A.2d 800

106 N.H. 436, 61 P.U.R.3d 166

WHITE MOUNTAIN POWER COMPANY v. Charles W. WHITAKER et al.

Supreme Court of New Hampshire.

Argued Sept. 9, 1965.

Decided Oct. 5, 1965.

Hall, Zellers, Morse & Gallagher, Concord (Atlee F. Zellers, Concord, orally), for plaintiff.

Upton, Sanders & Upton, Concord (Frederic K. Upton, Concord, orally), for defendants.

BLANDIN, Justice.

In broad outline, the fundamental issue before us is whether the record supports the order and report of the Public Utilities Commission granting the plaintiff's petition for condemnation of certain lands of the defendants. The disputed order granted the plaintiff's petition for a right of way from the company's substation south of North Conway at Redstone Village to a proposed substation to be erected in the village of Glen, in the town of Bartlett, approximately eight miles farther north. The question of damages is not before us, that matter having been transferred to the Superior Court under RSA 541:21 and RSA 371:10.

The defendants' position, as stated in their brief, is: (1) 'The order of the commission is clearly unlawful and unreasonable because there is no necessity for locating the transmission line on the defendants' property' and (2) '* * * because it takes from the defendants a greater amount of property than is required for the transmission line.' These questions are to be determined in the light of RSA 541:13, which reads as follows:

'Upon the hearing the burden of proof shall be upon the party seeking to set aside any order or decision of the commission to show that the same is clearly unreasonable or unlawful, and all findings of the commission upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable; and the order or decision appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable.'

At the threshold of the inquiry, it should be noted that it is undisputed by these defendants that the 33,000-volt transmission line which the plaintiff desires to construct is necessary to meet 'the reasonable requirements of service to the public' as prescribed by RSA 371:1. This is due to the fact that the demand for electricity in the area is rapidly and constantly increasing and that the present line has reached its capacity.

In regard to the defendants' first contention that it was unnecessary to take any of their property was need not detail the voluminous evidence elicited in hearings which lasted many days and during which several views of the locality were taken by the Commission. In summary, the plaintiff introduced testimony that as a result of a survey and after some four years' consideration, six possible routes were analyzed, including the one proposed by the defendants. They claim this is superior to the one requested by the plaintiff which was granted in substance by the Commission. The route finally chosen by the plaintiff company was picked on the basis of evidence that it best met vital requirements from the standpoint of continuity of service, safety to the public, economy in construction and maintenance, and was the most consistent with the public interest. A witness for the company testified that 'after about four years looking around this seems to be the only feasible route.' The Commission, which could accept or reject such portions of the testimony as it desired (Public Service Co. v. Tenneriffe Development Co., 104 N.H. 339, 186 A.2d 154), could find the following decisive facts:

The chosen route was laid out to pass easterly of North Conway and traversed completely undeveloped land of the defendants. There was no construction on this property, no buildings to be moved, and with the way cleared of trees, as the easement granted by the Commission would permit, it appeared that continuity of service and safety to the public would be well assured. The cost of purchasing the necessary rights of way and of construction and maintenance of the line would be lower than on the route proposed by the defendants. The danger to life and property by trees falling on the wires, an important consideration, would be reduced from that which would exist were the defendants' proposal to be adopted. Finally, the damage to the scenic beauty of the Conway area, which while not determinative is nevertheless to be considered (Opinion of the Justices, 103 N.H. 268, 270, 169 A.2d 762), would be less than if the defendants' alternative route were chosen. To be sure, there was contrary testimony, especially as regards value, where it is well known that opinions may be as numerous as the stars and often, as in this case, almost as far apart. However, we have repeatedly held that these conflicts were for the Commission itself to resolve. Plymouth Village Fire District v. Water Pollution Comm'n, 103 N.H. 169, 173, 167 A.2d 677; Goodwin v. Johnson, 105 N.H. 294, 296, 199 A.2d 97.

To uphold the burden which they assumed of demonstrating by 'a clear preponderance of the evidence' that the Commission's orders are 'unjust or unlawful' (RSA 541:13), and also to show that their proposed route was 'superior' to that granted by the Commission, the defendants rely heavily on their expert, Harris F. White. No question was raised as to his qualifications, but here again the Commission could reject or accept such portions of his testimony as they saw fit. Wujnovich v. Colcord, 105 N.H. 451, 453, 202 A.2d 484. However, as the plaintiff points out, Mr. White spent a single day on the project and never examined the company's proposed route from Redstone to Glen at all. He stated that he could make no comparison of the cost between the route granted by the Commission and the alternative route suggested by the defendants. He declined to testify that the defendants' route was better than the one granted by the Commission. He merely said that it was 'feasible practical,' and 'safe.' He went on to admit that if he were to engineer the installation of the line, he would not decide on his present knowledge which route should be followed. In this state of the record, it is obvious that the Commission was not bound to accept Mr. White's views, but could properly adopt the plaintiff's proposals.

The defendants next argue that the Commission's order is erroneous because it takes from them 'a greater amount of property than is required for the transmission line.' Here again they rely substantially on the testimony of Mr. White, who incidentally said a 100-foot width has been standard for 33,000-volt lines, buttressed by certain exhibits, including photographs, that a 100-foot right of way is not now necessary for a 33,000-volt transmission line. They urge that modern construction...