Potomac Edison Co. v. Bouton

Thompson, J., delivered the opinion of the Court. The Potomac Edison Company, appellant, sought to construct an electric transmission line from its Carroll station ³⁷² in Carroll County to a proposed Mt. Airy station in Frederick County. To accomplish this purpose appellant is entitled to exercise the power of eminent domain in obtaining easements over the proposed route.

A prerequisite to the exercise of that power is that appellant obtain from the Maryland Public Service Commission (the Commission) a certificate of public convenience and necessity. Md. Code, Ann. Art. 78, § 54A and § 54B. Bouton v. Potomac Edison Co., 282 Md. 142 , 383 A.2d 669 (1978). In its application for such a certificate appellant submitted a proposed route which would have passed through a wooded area and to the southwest of a certain Boy Scout camp and then through a relatively small portion of appellees’ property.

In an order dated November 13, 1974, the Commission conditionally approved the certificate ordering, in part, as follows: “(1) That a Certificate of Public Convenience and Necessity be, and it is hereby, granted to The Potomac Edison Company for the construction of a 230 kV transmission line as set forth in the application, except as hereinafter modified. “(2) That the following conditions are made part of said Certificate of Public Convenience and Necessity: * * * “(g) That with respect to the area where the proposed transmission line passes in the vicinity of the Boy Scout Camp, the Company be required to make a modification of its proposed line routing so as to place approximately an additional 100 feet between the transmission line and the pond; the movement of the line, in order to effectuate this modification, should be confined to and remain within the wooded area southwest of the pond; * * * “(i) That the Applicant follow, where practical, the guidelines for the protection of the ³⁷³ natural, historic, scenic, and recreational values as set forth in the Guidelines for the Transmission Facilities recommended by the Working Committee on Utilities in its Report to the Vice President and to the President’s Council on Recreation and Natural Beauty, dated December 27, 1968.” To meet condition (2) (g) appellant altered its proposed route so that it would pass the required distance to the southwest of the Boy Scout pond. The modified route exited the wooded area and entered appellees’ property at a point approximately 470 feet south of the original route. The result was that the new route passed through a much greater portion of appellees’ property than did that originally proposed. Unable to reach an agreement with appellees as to the amount of compensation that should be paid, appellant filed its petition for condemnation in the Circuit Court for Frederick County.

The inquisition of the jury awarded $24,200 to appellees as damages for the easement taken. On appeal, the Court of Appeals remanded the case pursuant to Md. Rule 871 for a determination of “whether the modified line route conforms to condition (2) (g) of the Commission order of 13 November 1974.” Bouton v. Potomac Edison Co., 282 Md. 142, 150 , 383 A.2d 669 (1978). The Court explained the importance of that determination as follows: “Upon conducting the appropriate proceedings upon remand, the trial court shall take such action with respect to the entering of a new judgment as is required by its findings. See Board v. John K. Ruff, Inc., 278 Md. 580, 596 , 366 A.2d 360 (1976).

If it determines that the modified route is not in compliance with the Commission’s order, the Company would not be empowered to obtain by condemnation the easement over Bouton’s land which its petition seeks, and the court shall thereupon vacate the inquisition and enter a judgment in favor of Bouton for costs pursuant to ³⁷⁴ Rule U21 b. If the court determines that the modified route is in compliance with the Commission’s order, the Company would be authorized to obtain by condemnation the easement sought, and the court shall thereupon reenter final judgment on the inquisition pursuant to Rule U21 d.” Id. at 150-51. Upon a retrial the question framed by the Court of Appeals was submitted to a jury which returned a verdict against appellant. From the judgment entered on that verdict, appellant appeals contending (1) that the case should not have been submitted to a jury; (2) that the court should have granted a summary judgment for the Company; and (3) that the court erred in allowing a surveyor to give his opinion on the question of compliance with the Commission’s order.

We agree that under the law the question should not have been submitted to a jury. Md. Rule U15 a. provides as follows: “A proceeding for condemnation shall be tried by a jury unless all parties elect trial by the court without a jury as hereinafter provided.” It is important to observe, however, the following notation by the Rules Committee following Rule U15 in Vol. 9C of the Md. Code Ann., Md. Rules: “Committee note. — No change is intended in the present law as to whether the question of the right to condemn is for the court or for the jury. See Johnson v. Consolidated Gas, Elec. Light & Power Co., 187 Md. 454 , 50 A.2d 918 (1947); Lustine v. State Rds.

Comm’n, 217 Md. 274 , 142 A.2d 566 (1958); Potomac Elec. Power Co. v. Birkett, 217 Md. 476 , 143 A.2d 485 (1958); Ligon v. Potomac Elec. Power Co., 219 Md. 438 , 149 A.2d 376 (1959).” We quote from two of these cases to illustrate the state of the law on this issue: “The appellants contend that there was error in refusing to allow them, during the course of the trial, and as part of their case before the jury, to attempt ³⁷⁵ to show that the determination of necessity and the denial of access by the State Roads Commission was arbitrary, capricious or unreasonable. We find no merit in this contention.

Such questions, at most, were for the court, and not the jury, to pass upon. Hyattsville v. Washington, Westminster & Gettysburg Railroad Company, 122 Md. 660 , Johnson v. Gas & Electric Company, 187 Md. 454 , Nichols on Eminent Domain, 3d Ed. Sec. 4.105 (5), McCarthy, et al., v. Bloedel Donovan Lumber Mills, Circuit Court of Appeals, Ninth Circuit, 39 F. (2d) 34, St. Clair County Housing Authority v. Quirin (Ill.), 39 N.E. (2d) 363, Wilton v. St. Johns County(Fla.) 123 So. 527 , 65 A.L.R. 488 , and Davidson, et ux., v. Commonwealth, ex rel., State Highway Commission (Ky.) 61 S.W.

(2d) 34 .” Lustine v. State Roads Comm’n, 217 Md. at 278. “We think it plain that the question of the right to condemn properly was determined by the court as a preliminary matter. This question, of course, was one for the court to decide. Lustine v. State Roads Commission, 217 Md. 274 , just decided____Ata time when the provisions now codified as sections 4 and 9 of Art. 33A were in effect, the Court held in Davis v. Board of Education, 166 Md. 118 , that there was no right of appeal from a preliminary determination that a petitioner had a right to condemn because that was not a final judgment, but accepted as a matter of course the fact that the question had been decided in advance of the trial by decision on a demurrer to a plea in bar.” Potomac Elec. Power Co. v. Birkett, 217 Md. at 482-83.

The appellees argue that under Rule U19 it was proper to submit the issue of appellant’s right to condemn to the jury. That Rule merely provides for the form and contents of an inquisition, as follows: “a. Form of Verdict. The trier of fact shall render a special verdict in the form of an inquisition. ³⁷⁶ b.

Caption. The inquisition shall be captioned with the complete titling of the case, except that the addresses of the parties may be omitted. c. Signature — Date. The inquisition shall be signed by each member of the