Opposition Brief — Pittsburgh National Bank v. Equitable Gas Co.

et

THE PITTSBURGH NATIONAL BANK, Executor of

PHL DAWIS, LER

In Tae

-‘Saprome Coat ot of the United States .

i

NO. 706

4 :

the Estate of Frank E. Mower, Deceased, Retitioner

-EQUITABLE GAS prene

=-

_ BRIEF IN OPPOSITION TO PETITION

7 _ FOR CERTIORARI :

WILLIAM H. Eckert

MILTON W. LAMPROPLOS

1000 Porter Building

on ran : "Pittsburgh; Pa., 15219 3

(% pee * Counsel for Respondent ne

i)

Eckert, SEAMANS & CHERIN _ | ee

1000 Porter Building.

Pittsburgh, Pa. 15219

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f . d : a ane

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——— in

SMITH BROS. CO. INC., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219

pei ——— PAGE

CN TO ais ap S kn kW gah be Re Baers 1

RR beens arses

Questions Presented ......... akan MrT &

Statement of the Case ..,........ eet ats dakecut 4

; © Summary of Argument ........2.......::.....6. 10°

cS Sas an Te Jc SPOR Ri waves sa |

’ ‘TABLE OF CITATIONS

Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 .... 10, 11, 14:

Brown v. Board of Education of Topeka, 347 L US. 483 9

' Burnet v. Coronado Qil & Gas Co. (dissenting opinioa

of Brandeis, J. OLE Gos OOS ....... Rea > 9

Catherwood Trust, 405 Pa. 61, 173 A. 2d * souiahane —$—

Enter -Irr. Dist. v. Farmers Mut. Canal Co., 243

"Brie Railroad Oo. v. Tompkins, 804 U.S, 64 2.2 9

. Fox Film Corp. v. Muller, 296 U.S. 207.......2:,.. 11

Great Northern Ry Co. v. Sunburst Oil & Ref. Co.,_ Bol 0

SY Me SOB 55 operas Hoes Copa -10, 15

~ Griggs v. Allegheny County, 369 U:S. Mona ae

Hardman v: Cabot, 60 W. Va. 664, 55 S.E. 756.2... 42. —

"aha, 5 Pelphent ral Ga, tafeinn eat 5,

_ Moffett v. Commerce Trust Co. 520 US. 608 fd $4 ere 3

" -MeDevitt v. The People’s Nat. Gas Co., 160 Pa. 367, :

DR Git okt Bocca sea bok a << wikees mn

North American Co: v. S.E.C., 327 U.S. 686 ea eae ee pee

Padgett v. Arkansas P. & L. Oo., 226 Ark. 409, 290 . |

SW. 2d 426 ooo e eee oe ert tates AY ie | Fe

we see ee eeeeeowneweeereeeveee * eeeeeeeeeveeeee 11 =e

-

-

e

us Table 2 of Citations. ee

% “CASES. piu oe

" Peabody v. Boston, 220 Mass. 376, 107 NE. 952 .. 12,13 ©

Pennsylvania Coal Cg. v. Salons 8 260 U.S. $98 0.8 97

Sauer v. New York, 2 U. S. 536 . Ste ae ae :. 10,16

* Sears v. Crocker, 184 Mass. 586, 69 NE. 307. a

eaeef eee

Smith v. The Central: Power’ Co., 103 Ohio St ¢

“2 oe ee eg ec cea a 13-.

Ee Sta ex rel. York v: Walla Walla County, 28 Wash. a

es | US eh ee een ae

Steriing’s Appeal, 111 Pa. 35, 2 410... cytes 8,9

Superior Court of Calif. v. Lillefloren, 335, U.S. 906 12

_ Mia OI Co. v. Flanagan, 263 U.S. 444 ........:. 10,14

” United States v..Burnison, 389 U.S. 87 ......... cS

United States v. Causby, 328 U.S. 256 ere ee

United States v. Fox, 94 US. S16 = 8 voces 10: |

United States v. Oklahoma Gas Co.; 318 U.S. 206 12

re United States v. Philadelphia, 140°F. 2d 406 (C.C.

ee pager? resee pueiatce vee ckatp |

| Mm. ae, Fok Oy ee

in. Het SGT ose es

Cooley, Constitutional Limitations (8th-ed.), Vol.

a D. TOR. ve ee PEE rE Le Focor eae triers Pree eee 8

Hiliott, Roads and Streets: (4th ed.), Vol. 1 § 502... die i

‘Nichols, Eminent. Domain (3rd ed.), Vol. 3, § 101 12

_ Saprome Court of t the United States

OCTOBER TEM, 1966

—

age oe db NO. -706

area PITTSBURGH NATIONAL BANK, Executor of -

' the Estate of Frank E. Mower, Receanel, EeGHore

: . : . Vv ae

EQUITABLE GAS COMPANY . pe

, SEP IN OPPOSITION TO PETITION .

' FOR mesic seco age

‘OPINION S BELOW

Petitioner’ s reference to the Official oa ‘unofficial

reports. of the opinions delivered in the Courts below

is not correct when it states that the opinion of the court | oy

en bane: of the Court of’ Common Pleas of Allegheny

* County, Pennsylvania, is reported at 114 P.LJ.1 1.-It

is only the opinion of the trial judge that is reported at —

114 PLS. 1. The opinion of the court en banc is not

” - peported: . -

: % Pittsburgi Legal Journal. *

Ce .

JURISDICTION =—t—ts«Y

Te jrtaiction of this Cort is invoked under 2

U.S.C. § 1257 (3). The petitioner contends that the 5th

and 14th Amendments to the Constitution of the United ©

_. States are involved in. the instant case. Petitioner .

’ asserts that its decedent's. property was taken with-.

out just compensation or due process of law because the

Supreme Court of Pennsy ‘reversed a former de-

_. Gision which made a ction between urban and rural

highways with respect to the extent of the public ease- |

ment in highways and held, as do the vast. ‘majority of

the States, that the installation of a gas pipe line or

- other common public utility facility in any public high-

way doeg not impose an additional servitude on an abut-

tee peenenin ne eotitie: the. coreee of peep Bop ITT

ee - :

QUESTION 8

wi Does the:thw of a State that the laying of a.

common utility, such as a gas line, wholly within a pub-

lic highway in a borough, does not entitle an abutting

rty owner to ee violate the United States

nstitution? .

| 2.. Is the Sailiijeil of the 5 Widie court based upon

an adequate and independent nonfederal ground where

” the State law is that the laying of a common utility,

such as a gas line, wholly within a public highway in —

a borough, does not entitle an abutting property owner —

to damages and the gas line ih question was in fact

laid wholly within a public highway in a borough?

3. Is the United States Constitution violated where

‘a State-court, in view of the fact that present-day town-

“ships and so-called rural areas are a far ery from the —”’

backwoods they were once .pictured and modern con- |

veniences, such as gas heat and electric light, are today

commonplace and accepted as a way of life in virtually

all rural homes,. overrules an old distinction between

township highways and city and borough highways

+e havencnd eden on tesa ake

~ ment in highways and declares that the same rule, which

. theretofore applied to city and borough’ highways, shall —

neiy %. 011 Meteyags in fhe Apsiet : te Mele.

ee

ae Sie ft ay

| meteenent annee ssa! : einen ates

STATEMENT OF THE CASE

~

1956 laid|a gas distribution pipe line wholly within the

- confines pf Beatty Road, a public highway, in Monroe-

ville ~Borough, _ Allegheny County, Pennsylvania (R.

‘The respondent gas company, a public utility, in‘

35a, 87a, 92a, 96a, 100a, 104a, 139a, 14222). The pipe —

line was laid entirely within the lines of the highway, ~.

along the frontage of the property of plaintiff’s dece-

, - dent - (hereinafter called “Mower property”). and no |

part of. the Mower. property was physically taken (R.

20a, 34a, 57a, 73a-78a, 96a, 100a, 104a, 1238, 125a, 127a,

* 129a, 131a). The pipe lime, laid within the right of © ~

|, way of the public highway along the Mower property,

’’ is part of a gas distribution pipe line laid fronr-a gas

pipe line of Texas Eastern Corporation in Salem ‘Town :

ship,. ‘Westmoreland ‘County, Pennsylvania; to Peter- —

‘man’s Corner in Penn Township (now Penn Hills), Alle-

gheny County, Pennsylvania, in order to furnish an.

adequate supply of gas to the eastern side of respond:

-ent’s distribution system, : including the: distribution‘ i

system, for the residents of Monroeville Borough, one

of the fastest growing communities in Allegheny. Coun-~—

_ ty, and adjacent communities. (R. 3 38a, 482-492, 622-630,

148a).

—_—

a)

& : Record. rorictiilée Yetiowee sy Si aaw! t5 thd

‘Record printed for the Supreme Court of Pennsylvania.

_ Those followed by “b” are to the Supplemental Record

* “of Appellee in that Court. Respondent cannot give rec-.-

ord references to the Record, as renumbered and en-

‘filed with this Court since.it was not furnished e

ac a copy of such Record.

to the impression Gokek teh :

wa esr ent Fb a

wr

?

-

‘was owned by Frank E. Mower, the decedent, and his. . |

‘wife, as tenafits by the entiréties -(R.-16a, 138a) and Sa

ted, Beatty Road,.were located it Monroeville, which

: Beatty Road for maintenance (R@133a). It is clear that.

_” Beatty Road has been in existencé and a public highway.

«© from time immemorial-and that,.at least since February |

ee highway under the control ane: care of ee County: im’

* (R. 1410-142).

: fastest growing eommunity in Allegheny Count

- -$tates“Census figures. show that ta population

: _ from 7,841 in 1950 (the last year in ch the.

* five years ifinumerable plans of Jots have been laid ¢

, -and developed and extensive in ‘and comme ao

2 establishments have been located and built in that eom\\

Basta de : if z . - : A 7

| es al

Tah as be ¥

} .

" Btatemibnt of the Case: os ras

ey

When t this pipe line was laid the. Mower setsliina

that property andthe public highway on which it abut-

was then’a-borough, having been incorporated*@s such

_ on January 25, 1951, almost five.years before the pipe es

“tine was laid, by an order of the Court - of Quarter Ses-

‘sions. Of Allegheny County, (R. 30a,, 89a-90a, 138a).

Prior: to| 1951, and in 1921 when Frank E. ‘Mower, and

his wife acquired. title to, the property, the Mower prop-

~ erty-and the Portion of Beatty Road on which ‘it fronted

were located in Patton Township,

There is no publie record or other evidence to show |

‘ahaa, or how Béatty Road was established. ‘There is

a, proceeding in the Court of Quarter Sessions of Alle-

gheny- County under which Allegheny. County tookover”= ¢

27, 1915, to the present time, it has been and is a public

Because the pipe ne was 5 lait in a public highthay

Joeated in'a borough and it has beeh thé law in Pennsy}

Patton Ti [p) to 22,246 in 1960.: In the past’

do

%e

/

Be

(seid sisiwars and refused to. nenste 10, the

Mowers for the payment of damages (R. ‘5a-6a, 11a,

| 45a-48a). The Mowers, therefore, commenced this ac-.

™

_tion of trespass against the respordent.¢ |

SE

Re the trigh; petitioner « elected“ to “consider the oe

leged trespasstas. an appropriation ef a right of way for |

__ the pipe line and, to ‘have the damages determined as if

the suit were an eminent domain oreo (R, 63a,

«” 143a). tee

The cise 9 recognized ° that the ‘real “issue -in

bar

the case was an issue of law’for’the court but

decided ‘to reserve decision, ‘instead of ruling forthwith,

:-4- as ait oh Goincsianaaed wy Wenaks te Mower -

et ‘and Viola B: Mower, his. wife, by a praecipe for a writ

of summons (R. 1a). Viola B. Mower died before a.com- -

laint was filed (R..5a). A complaint was thereafter

: Fie b bytrratik E. Mower alone (R. 3a) and the caption

of the case was amended by removing the wife~ plaintiff

"a8. paksyto. thie snkt (R. 18). Frank E. Mower died a ee

vee ran Statement of the Case.

on respondent's nin for a directed verdigt 5 Accord-

ingly, the trial. judge submitted to the jury: only a spe-

cial interrogatory, namely, if it should be decided, as a

matter of law, that petitioner was entitled to damages

what was the amount of the difference, if any, between

the fair market value of the property before and after

- the pipe line. was laid (R. 92a, 103a, 108a-111a, 137a).

The jury returned a special verdict that the amount

of that difference was $9,700 (R. 137a).

Petitioner tfies to mislead this: Court while fk states

(Petition, p. 4) that ‘There was no ‘dispute among, the

real estate experts for both parties as to the fact -

that there was acted money damage to decedent” in |

this case. The petitioner deliberately . ignores and

oi conceals from this’ “Court the essential fact that the

ae opinions of respondent’s experts as to possible damage

’ were expressly predicated on‘the assumption that, as.a -

- Matter of. law, an additional servitude -was imposed

_ ,uponghe petitioner’s property by the gas line and that ©

| “any such opinion was expressly given subject to the de-

_. Giston by the court on the question of whether any ‘ad-.

ditional servitude was imposed by the’ ‘gas line (R. 7b)...

It has always been respondent’s position that the plain- ©

. tiffs property was not damaged whatever by the laying -

‘Of the ges line wholly within ‘the public highway and

that the plaintiff was not entitled to recover. anything

: (R. 10a, 11a, 102a, 116a, 137a, 168a).

” The trial judge decided that the ne was en-

_ titled to recover compensation, even though the public ©

: “highway was located in a borough when Ge pipe ‘was.

‘a ‘Sometimes called, under ‘Peanayivends proce-

dure, — pont for — instructions.’ Me HA.SE

"

‘«

Statement of the Case. .

_ ‘laid entirely within the confines of the highway, because, °

_ when the public highway wag established and when pe- _

titioner’s decedent acquired | the .p ,*the highway °

and the property were located in a ship (R. 161a). .

The trial judge incorrectly reasoned, in ‘the face of per-

- guasive and weighty “authority that ' ‘there can be no

vested right, in the constitutional sense, to a continu-| re ;

_ - ance of an existing status quo-or general law,® that

iv. petitioner's decedent had a vested right to ‘the continu- |

( ance’of the so-called “téwnghip rule”, enunciated in

Sterling’s Appeal, 111 Pa. 35, 38-39, 2 A. 105, ‘which’

could, not be, in any manner, taken away without ‘ in-

| t of the Sth ‘and 14th Amendments to the Con-

stitution of the United States’ (R. 161a). The trial

' judge entered an order that the special verdict be filed

of record and that judgment be entered thereon (R.

166a-167a). The respondent thereupon, in accordance

with applicable Pennsylvania procedure, filed a motion

for judgment non obstante verdicto. (R. 168a).

: A court en banc, consisting of the trial judge ent

another judge of the Court of Common Pleas of Alle-

gheny County, adopted the reasoning of the trial judge.

.and refused respondent’s motion for: judgment n.0.Vv.

".® (R. 183a-184a, 190a, 192a-193a). Judgment was entered

against the respondent in ‘the amount of the special

verdict, as amended by. the court en banc to add deten-

tion money (R. 2a-3a, 192a-198a). The appeal by re-

apontent to the Supreme Court. of Pennsylvania followed.

6. See: North Américan Co. v. 8.E.C. 327 US. 686,

708: are States. v. Philadelphia, 140 F. ‘2d 406, 408

-(C.C.A. 3); Catherwood Trust, 405 Pa. 61, 70, 173 A. 2d

86; 2 Cooley Constitutional Limitations (8th ed.), p.7 749;

16 Am. Jur . 2d, p. 762. *

_ Btatement of the Case.

‘The eae Const of Seite after the case

_ was fuily briefed and argued by counsel for the parties,”

unanimously reversed thé. judgment of the trial court

_’ and entered judgment for the defendant. It appears from,

the exemplary opinion written by Mr. Justice Eagen that

five members of the Supreme Court of Pennsylvania

decided ‘to follow the course, often followed by this

‘Court,8 of refusing to. perpetuate an obsolete rule by:

_blind adherence to the principle of stare decisis and,

" instead, ‘molding the law to fit modernized living condi-

tions. Accordingly, it was held that the time had:come

“for Pennsylvania to join the vast majority of the other

States which hold that all public highways may be used.

for modern public uses which have become commonplace

by the evolution of civilization, even though such uses | -

were not in existence and therefore not in contemplation

at the time the highways were established. The othér

. two’members of the Supreme Court of Pennsylvania,

concurring in the result, apparently recogniged that the

judgment of the Court is required by the — .

State law. | :

7.. Severaf amicus’ curiae filed briefs urging the |

| Court to overrule the decision relating to township roads |

| in Sterling’s Appeal, 111 Pa. 35,2 A. 105.»

| 8.. See: Brown v. Board of Education of Topeka, ~-

347 U:S. 483, 492-495; Erie Railroad Co. v. Tompkins,

US. 64, 74.. Also see: dissenting opinion of Mr.

stice B paees as Ne, ©, Coronado Oil & Gas Co.,

US. 393, 406. . >

‘Sumtary of ' Argument

SUMMARY OF ARGUMENT iy

The State Court interpreted the law of the State and

. determined, like-the-vast majority of other state courts,

that the installation of common utility lines in a public.

highway. does not impose an additional servitude on

abutting properties and entitle their owners to additional .

-compensation. It is well settled that it is for the state

courts to declare what the state law is, particularly with

respect to real property rights. United States v. Fox,

94 U.S. 315, 320; Sauer v. New York, 206 U.S. 536, 548;~

Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673, 680; United

States v Burnison, 339 U.S. 87, 91. A state court may

_overrule.a prior decision by it and in doing so may follow

- the doctrine that: the revised law shall: apply to the in-

stant case before it. Such action by a state court does

not violate the Federal Constitution. Tidas Oil Co. v.< re

Flanagan, 263 U.S.-444, 450; Brinkerhoff-Faris Co...v.

Hill, 281 U.S.-673, 680; Great Northern Railway. Co. v.

Sunteret O68 & Refuing Od 287 U.S. 358, 365. _

_ Accordingly, the Supreme. Court of. Pubtiey vant

was correct in its decision on the merits, the State Court ~

decision is. based onan adequate: nonfederal ground,.

there was no denial of due process guaranteed by the

Federal Constitution, and there is no federal cee

involved in the case, at bar. :

" Certiorari should therefore be denied.

=

>

ice ane

Argument. oad

_ ARGUMENT

A eacenil of the opinion of the eisiliiin Court of

Pennsylvania abundantly demonstrates that-it decided”. ~~

purely amatter of state law regarding the uses to.which

an already existing public highway easement in that

State may be put to provide necessary and essential

~ public utility sérvices to the public. It is also clear, from

. the concurrence of two of the members of the State.

court, that the result reached in the instant case is and

_may be adequately supported on the status of the State

law as of the time when respondent’s pipe line was laid .

- _ and without overruling any prior State precedent. Such

’ questions are and must be for the final determination of

_” the State court. That the State court only decided a ques-

tion of State law and. was not required to and did not —

reach any Federal question is plain from the opinion of

Mr. Justice Eagen for the. Supreme Court of Pennsyl-

vania. Speaking for that Court, he eegiog (Petition,

Anpeait C, p. 61): :

-_. “Since our decision concerns is only the’ degree of +

_ use to which an already existing public easement .

- may ‘be put, the constitutional questions raised here

_ and below are not relevant.”

It is too well settled to justify extentled discussion :

that the courts of a state have the power to interpret

and declare the laws of the state and that where, as here,

‘a state court decision is arid may be based upon a non-

federal ground and the nonfederal ground is adequate to .

support. the judgment it is not open to review by this

Court. Enterprise Irrigation District v. Farmers Mutual

. Canal Co., 243 U.S. 157, 164-166; Brinkerhoff-Faris Co.

v. Hill, 281 US 673, 680; Fox Film Corp. ‘vy. Muller, 296 .

bs

- ' Fr

~ . 12

&

‘Argument.

U.S. 207, 210; ); Moffett: v. Commerce. Trust Co., “829 U.S.

669; Superior Court Sof oe v. rip tig Ahead 335 U. ail

oo

Moreover, the Pere tk of the. {eee Court. of .

Pennsylvania is correct and in full accord with the deci-

sions of the. vast majority of’ the other State courts

which have considered and passed upon the same ques-:

tion ‘involved in this case. -The vast majority of the —

- courts have held that public. highways were taken or

dedicated for all reasonable means of transportation of.

.persons and commodities which the advance of civiliza-

tion may evolve and that the servitude imposed by high-

way easements expands to accommodate improvements

in methods and means used to transport passengers and

commodities, without any additional compensatjon to °

3 . the owners of the abutting. properties. who ‘own. the fee

-gubject to the highway easement: These courts have

correctly observed that all damages.for such uses were

; included in the assessment of compensation for the orig-

inal laying out of the highway. For example, see United

States v. Oklahoma,Gas Co., 318 U.S. 206, 209; Padgett

v. Arkansas Power & Light Co., 226 Ark. 409, 413-414,

290 S.W. 2d 426; Sears v. Crocker, 184 ‘Mass. 586, 587-588,

69 N.E. 327; Peabody v. Boston, 220 Mass. 376, 377-378,

107 N.E. 952; Smith v. The Central Power Co., 103 Ohio

St. 681, 137 N. E. 159; State ex rel. York v..Walla Walla

“County, 28 Wash. 2d 891, 903, 184 P. 2d 577; Hardman =

v. Cabot, 60 W. Va. 664, 667-669, 55 S.E. 756; 3 Nichols, -

Eminent Domain (3rd ed.) § 10.1. (p. 342 et seq.) and =

cases there cited; 1 Elliott, Roads and Streets (4th o. )

§ 502 (p. 565) ; 25 Am. Jur. aren

i

.

Argument.

i excellent, but lengthy, exposition of this prin-

'- ciple is the concurring opinion of the Chief Justice of

_ the Ohio Supreme Court in Smith v. The Central Power

Co., supra, at 691-695. The principle is also logically,

but more concisely, set forth in the opinion of Chief

Justice Rugg for the*Supreme Judicial Court of Massa-

chusetts. in Peabody v. Boston, loc. cit. supra, thusly:

“The public acquired the right to use the land, within

‘the boundaries of the taking of the easement of -

travel, for all reasonable means of transportation

mas for persons and commodities which the advance of

civilization may render. suitable for a highway. The

fee of the land remains in the landowner, who may

use it in any reasonable way not inconsistent with

_ . the paramount .right of the public easement which

is coextensive with the limits of the highway. When —

“the needs of the public for the ‘purpose of travel in",

erease, they are superior and the landowner must |

withdraw even to the extent of being quite excluded. .

e (Citations) . ’. Included in the same public right is

4

the suktecsenenn use of the streets for travel. Sears

v. Crocker, 184 Mass. 586. All damages for these and.

such like uses were included in the assessment: of

compensation for the original laying out of the high-

way. No constitutional right of the abutting land-

owner is invaded by the exercise of the rights ac- |

quired by, the public but suffered to lie dormant ‘for

~ a time.”

An. analysis of the petition for writ of certiorari. pe

filed in the case at bar shows that the position of the

petitioner is that its decedent had a property right in

- @ court Aeciaion or prior precedent of rep a law which

*

siase—> —,

Wo

ee: ‘oni not be Srerrulod ‘cia “Vichatling the Consti-

tution of the Unita States. “The petitioner contends ,

that state court ‘decisions, should \and may make’ law

for the future only. The mere statement of this argu-

ment plainly demonstrates that it is wrong, wholly with-

out merit and specious. On‘the.cor ; it is‘a long es-

tablished prineiple of law that stare decisis is not an |

_ inexorable comrffand ‘and that courts, like this Court,

- may and should overrule an earlier. decision when im-

proved living conditions or other. phanges wrought. by

an evolving society \rendér a former decision incongru-

ous. : What Mr. Jugtice Holmes observed in his dis-

‘senting opinion in Kuhn v. Fairmont Coal Co., 215 US. -

. © 370, is peculiarly apposite (p. 372): | ,

.: +. #E Imow of<no authority in. this ‘court - to” say

that in general state decisions shall make law only

for the future. Judicial decisions have had retro-

“spective operation for near a thousand years.”

* ‘In Tidal Oil Co. v. Flanagan, 263 US. 444, this

_ Court by Mr. Chief Justice Taft, said (p. 450) :

“The parties to this action have been fully heard in =

- the state court in the regular course of judicial pro-

. S| ‘and in such a case the mere fact that the

state coyrt reversed a former-decision to the preju-

dice of one party does not a ee his property

without due process of law.”

The iapticedle principle was stated by Mr.. Justice

Brandeis for this Gourt in Brinkerhoff-Faris Co. v. Hill,

3 281 U.S. 673, thus: (p. 680) : ae

| a “te io true that the Hourts ofa Blate have the

supreme power to interpret and declare the written

atid unwritten laws of the State; that this Court’s

& spine

5

Ss 2 . vy ~

power to novienr déclalons of state courts is limited

_ to their decisions on federal questions; and that the f

mere fact that a state court has rendered an errone-

: ous decision on a question of state law, or has over-

ruled principles or. doctrines established by previous .

decisions on which a party relied, does not give rise

_ to a claim under the Fourteenth Amendment or

otherwise confer seen acre on this.

: Co A. c

XY

. \

And in a ‘iets to the. opinion Mr. Justice Brandeis

am ee

“The process of trial and “error, of dhangs of |

- decision in order to conform with changing ideas

" and conditions, is traditional with courts administer- |

ing the common law. Since it is for the state courts ~

to interpret and declare the law of the State, it is for

- ‘them to correct their errors and declare what the law

has been as well as what it is. State courts, like this

) Gourt, may @rdinarily overrule their own- decisions —

without offending constitutional guaranties even

; though parties may have aeted to their prefadine:

on the faith of the earlier decisions.”

In, Great Northern Railway Co. v. Sunburst Oil &

Refining Co., 287 U.S..358, this Court, in an opinion by

Mr. Justice Cardozo, declared (pp.'364-365) :

“A state in defining the limits of adherence to pre-

cedent may make a choice for itself: between the .

_ principle of forward operation and that of relation

backward. It may say that decisions of its highest

court, though later overruled, are law none the less .

for intermediate transactions. Indeed there are

cases intimating, too broadly (cf. Tidal Oil. Co. v

oN < werent La

a*

.

Argument. )

Flanagan, supra), , that it must give theni that ef-

fect; but never has doubt been expressed that it

' may so treat them if it pleases, whenever injustice

or hardship will thereby be averted. [Citations] On

the other hand, it may hold to the ancient dogma

that the law declared by its courts’had a Platonic

or ideal existence before the act of declaration, in

which event the discredited declaration will be -

viewed as if it ‘had: never been, and the reconsid-

ered declaration as law from the beginning. [Cita- .

tions] The alternative is the same whether the sub- |

. ject of the new decision is common law (Tidal Oil

v. Flanagan, supra). or statute. [Citations] The

3 _ choice for any state may be determined by. the ju-

ristic philosophy of the judges of Ker ee their

conceptions of law, its origin and nature.”

Singularly appropriate to the instant case is the fol-

_ lowing holding: by this Court i in | Sauer v. New York, ae

US. 536 at 548:

“The right of an owner of land abetting | on cane: '

highways has been a. fruitful source of litigation in

the courts of all the States, and the decisions have ~

been conflicting, and often in the same State irrecon-

cilable in principle. The courts, hve modified or over-

ruled their own decisions, and each State has in the

| end fixed and limited, by legislation or judicial deci- ©

_ gion, the rights of abutting owners in accordance .

_' with its own view of the law and public policy. As

has already been pointed out, this, court has neither.

the right nor the duty¢o reconcile these conflicting

decisions nor to reduce the law of the various States

“to a uniform rule which it shall announce and im-

° i P Ps “* ' : : 17

Argument. . ;

: pose. Upon the ground, then, that under the law of

. ‘New York, as determined by its highest court, the

‘plaintiff - never. owned: the - easements which he

claimed, and that therefore there. was no property ;

taken, we hold that no violation of the Fourteenth

Amendment is shown.” —

The cases which the petitioner cites Z ‘support its

ae contention that the alleged retroactive enlargement of

the’ public’ easement in a highway infringes the Federal

Constitution are plainly. distinguishable and inapposit

In Pennsylvania Coal Co. v. Mahon, 260 U.S. 3934

_ defendant coal company owned certain coal and the right

to mine all of it without any liability for surface damage. _

The Pennsylvania. legislature, claiming the right under —

the police power, enacted a-statute-which forbade any .

coal owner from mining his coal in ‘such way as to cause

the subsidence of certain surface structures. It was clear ©

and admitted that the statute as applied to that case .

_ destroyed ¢éxisting rights of property and contract,

which is the antithesis of the case at. bar. This Court

held that the regulation of the coal company’s property

' went too far and, thérefore, constituted a taking without

* compensation contrary to ‘the Federal Constitution.

Howeyer, it, is significant. that this Court there recog-

nized (p.'413) that “[g]overnment hardly could’ go on if

to some extent values incident to property could not be

- . diminished without | myne for ‘every: such sate! in-the —

general law.”

United States v. Cousby, 328 U.S. 256 and Gries v.

Allegheny County, 369 U.S. 84, -only hold that the opera- .-

tion of airplanes in’ taking off and landing at’an airport ,

by. low a over ie sha or oe property 50 as to |

°18

make the pasperty aiunahie as a chicken farm or a ra priv-

oO.

ay gpa) or > Argument.

ate residence Because of the resulting noise, vibration

“- and danger constituted the taking of an- air easement

es

a payment of compensation therefor. 6

_ over such property for which just compensation tnust: be:

-. paid. No easement whatever for low airplane fights mee

~_over the plaiijtiff’s property was already*in existence in ~~

. those cases; whereas, in the case at bar, the easement for

a public highway in front of. plaintiff's property had

existed for innumerable years before the gas: ‘line va

‘laid in that public highway. “

The Griggs case does not hold, as petif@ner states

(Petition, #7), that “[W]hile concededly the state at

one time acquired some rights to use the surface of peti-

tioner’s land ‘by constitutional standards it did not ac- = :

quire enough’ to permit use of the sub-surface without.

“9

: “Petitioner’s position: in the instant case is that own- °

; ership of the-‘land extends from the surface downwards

| to the center of the earth and upwards indefinitely to the

' skies and that, therefore, everi if an easement for a ‘high-- ;

| Sway exists over the-surface. of the land, no use of any

Par |

‘; area below or above that s ace may be made without ~

the payment of additional compensation. If pe itioner’s

% position were correét, travel through. the air ‘over this

oe country could only. have been: accomplished by the ap-

- propriation of an air easement, with the payment,of com-

pensation, over every square inch of land in the 50 states _

'* of this’nation. If petitioner. were right, the Congres-

"sional. enactments pursuant to which the United. States

- ‘declared that it possesses and exercises sovereignty. over”

ee od

e ro

ee

the nation’s air space and granted to any citizen freedom

Tags ° Y Pe pS

$

’

%«

~

a

L

ws

v

: a4 to travel bch the pits aera air ‘Space, inking it

+

aT

Ma

oe

Sead

eS Sa ee

Argument. = ee,

the Constitution of the United States, because: no com-

pensation. was provided or paid for the appropriation of—

Such “airspace, Fortunately, for the progress and ad-

ent of this Country that, position is not recog-

zed. On the contrary, this Court, in United States v..

uusby, 328 U.S. 256; rejected any. —_ thought, saying

" (pp. 260-261) : Bee ane

7... “It is ancient. doctrine that at common law own-

ership of the land extended to’the periphery of the

universe — Cujus est solum ejus ‘est usque ad

coelum. But that’ doctrine has no place in the mod- .

ern world. .The air is a public highway, as Congress 7

- has declared. Were that not true; every transcon- .

tinental flight would subject the operator to count:

less trespass suits., Common sense revolts at-the -

. idea. To recognize ‘onthe private claims to the air- .

' space would clog these highways, seriously interfere :

with their control and. development in the public.

"interest, and transfer into private ownership that

‘. to which only the public has a just claim.” ;

Petitioner tries to create the impression (Petition,

pp.. 8-9) that what was done by the Supreme Court of -

Pennsylvania in the instafit case is novel and startling

Me Dear py Penal acet tame accepted constitutional doc-

ee

o C-

- trine. Petitioner

that the decision, of the Court’

below will “be wi: - practiced” and that a proverbial

‘ Pandora’s bex will unlocked, unless this Court .in-

tervenes. It is manifest, from what has been set forth

in this brief, that the decision of the Supreme Court of |

_ Pennsylvania is n novel or startling and that, on the |

contrary, it, is in‘accord with logical and sound deci-

~~‘sions of other -courts exten ‘back more then a half

ary. nee oe

Argument:

9 o as

Petitioner pare to the beaittification seccnasii

: ‘being urged upon Congress and ‘conjectures that to ac- -

‘complish them it might be decided that utility lines-and

the like should be removed from the surface of the coun- ©

tryside and should be buried beneath the surface. Pe-

_titioner theorizes that if national beautification is thus _

accomplished it will be at the expense of “a relatively

few property holders rather thar the government bodies -

_ or utility companies” who may pass the cost on to the ~

general: public. This attempted illustration is“absurd .

and specious. If Congress decides that overhead .lines

strung along public highways, established by prior con-

‘demnation or dedication, should. be * removed and relo- |

-eated beneath the surface of such highways, no addi-

tional servitude will be imposed on the highways and _

the abutting properties. Therefore, there would be no

- reason to justify the payment of additional damages

. to abutting property owners if wires which had been

. above the surface of a ‘public highway were ‘placed be-

neath it: Any allowance of compensation iri such cir-~

cumstances, would be plainly unjust and an ‘unfair toll.

The dire consequences and ‘perils which petitioner con- . 7

_ jures have not occurred despite the fact that the princi-

ple followed by the Supreme Court of Pennsylvania in

‘this case has been the law.in other States for over a half

century. Any such consequences and perils are a mere -

oe of Aaeontedy imagination to intimidate. this,

The law, we. submit, is not peda ay inflexible

as petitioner would have it declared. As demonstrated

- by the authorities cited in this brief, the law is flexible

‘ and progressive and adapts itself to new conditions and

- concepts created by the — of anil

Argument. eee .

In conclusion,.it is respectfully submitted that the

decision of the Supreme Court of Pennsylvania that the

public easement of a highway includes every- reasonable.

means for the conveyance of persons, the transmission

- intelligence | and the transportation of commodities —

which the advance of civilization may ‘render suitable

for a highway is correct; that no constitutional right of

the petitioner has been violated; that.. the decision of

the Court below is adequately supported. by nonfederal

grounds; that the Court below has not decided a federal

question of substance not heretofore determined by this’

. Céurt or’decided it in a way not in ‘accord with vap- -

- ° plicable decisions of this Court; and that no federal ques-

tion is. involved in the case: at bar. Accordingly, the

judgment of the Supreme Court of Pennsylvania should

not be disturbed: There is nothing in the instant -case _

that justifies the granting of a writ of certiorari.-Cer- ~

' _ torari should, therefore, be denied.

“ _ ” Respectfully submitted,

WILLIAM H. ECKERT” |

MiLTon W. LAMPROPLOs _

: Counsel for r Respondent

ECKERT, SEAMANS & CHERIN - ‘ i! :