# Opposition Brief — Pittsburgh National Bank v. Equitable Gas Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0061%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1966 - **Citation:** 385 U.S. 988 ## Text 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 e 4 *#} f . d : a ane e . Py F ——— 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 ‘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. 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 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! : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0061%3A2. Public record. Not legal advice.