Opinion
[No. 211, September Term, 1958.]
Decided March 20, 1959.
EMINENT DOMAIN — Necessity For Taking Fee Rather Than Easement — Condemner's Choice Will Not Be Set Aside Unless Arbitrary Or Unreasonable. The choice as to the extent and type of taking rests largely in the sound business judgment of the condemner, and will not be set aside by the court unless it is so oppressive, arbitrary or unreasonable as to suggest bad faith. Where it was shown that the condemner acted upon the advice of a qualified and independent engineer and there was evidence of several factors which influenced its choice, the Court held that the trial court properly ruled as a matter of law that the condemner had shown a necessity to take a strip of property, for the purpose of erecting and maintaining an overhead power line, in fee simple rather than an easement which would permit the quarrying of stone in the subsurface of the strip. pp. 439-440
T.G.B. Decided March 20, 1959.
Appeal from the Circuit Court for Montgomery County (LAWLOR, J.).
Condemnation proceedings by Potomac Electric Power Company against Percy G. Ligon and wife. From a judgment on a jury's inquisition, the defendants appeal.
Judgment affirmed with costs.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
J. Hodge Smith, with whom were Kelley Smith on the brief, for the appellants.
Richard W. Emory, with whom were Cornelius Means, Frank A. Tyler, Jr., and Venable, Baetjer Howard on the brief, for the appellee.
The sole question raised on this appeal is whether the trial court in a condemnation case properly ruled as a matter of law that the condemner had shown a necessity to take a strip of the appellants' property, for the purpose of erecting and maintaining an overhead power line, in fee simple rather than as an easement that would permit the quarrying of stone in the subsurface of the strip.
The cases recognize, and it is virtually conceded, that the choice as to the extent and type of taking must rest largely in the sound business judgment of the condemner, and that such choice will not be set aside by the court unless it is so oppressive, arbitrary or unreasonable as to suggest bad faith. See Murphy v. State Roads Comm., 159 Md. 7, 15; State Roads Comm. v. Redmiles, 176 Md. 677, 681; Johnson v. Gas Electric Co., 187 Md. 454, 463; Lustine v. State Roads Comm., 217 Md. 274, 278. Closely in point are the cases of Webster v. Pole Line Co., 112 Md. 416; Potomac Power Co. v. Birkett, 217 Md. 476; and Jeweler v. Potomac Elec. Pow. Co., 217 Md. 458. Cf. Code (1957), Art. 23, § 197, and Code (1957), Art. 33A, § 14.
A careful review of the testimony demonstrates, we think, that the condemner in the instant case acted upon the advice of a qualified and independent engineer, who testified that it would not be practical to permit mining operations under the surface of the strip, and that such operations would create a hazard to the transmission lines. There was also testimony that the condemner was influenced to some extent by its desire to avoid possible complications, such as extinguishment of an easement by tax sale, and possible additions and changes in the structures. Apparently the company had decided as a matter of policy that the rights of way for the whole line should be acquired in fee. Upon this record, we think there was no showing that the condemner's choice was so arbitrary or unreasonable as to require that it be set aside.
Judgment affirmed with costs.