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MISSISSIPPI POWER & LIGHT COMPANY v. LOUIS A. CONERLY

OCTOBER 10, 1984

MISSISSIPPI POWER & LIGHT COMPANY
v.
LOUIS A. CONERLY, et al.



BEFORE BOWLING, HAWKINS AND SULLIVAN

BOWLING, JUSTICE, FOR THE COURT:

This appeal involves proceedings in a Special Court of Eminent Domain of Walthall County, Mississippi, Circuit Judge Joe N. Pigott presiding, according to applicable eminent domain statutes. Appellant, Mississippi Power & Light Company (MP&L) appeals from an order of the circuit judge dismissing its petitions for condemnation of land attempted to be secured for construction of a high voltage electric transmission line. The appeal brings four consolidated condemnation suits and involves four separate pieces of property owned by appellees. The principle issue is whether or not the trial judge had sufficient basis to dismiss the condemnation petitions. We hold that he did and we affirm his orders.

In 1981 appellant MP&L decided to construct a 500 kilovolt (Kv) transmission line from its substation in Franklin County, Mississippi, known as the" Franklin Substation "to a point on the Mississippi-Louisiana line. The Louisiana Power & Light Company (LP&L) was then to continue the high voltage line to Bogalusa, Louisiana and eventually to the Eastern New Orleans electrical distribution point solely owned and operated by LP&L. Already constructed is a 500 Kv line from the new Grand Gulf nuclear energy plant in Mississippi to the Franklin Substation. The proposed new line of fifty-one miles from that station to the Louisiana line would continue the high power line so that it would carry electricity from the Grand Gulf plant into Bogalusa and from there, eventually, to New Orleans.

 Prior to the attempt to secure the right of way for the fifty-one mile high voltage line, MP&L applied for a certificate of public convenience and necessity from the Mississippi Public Service Commission (MPSC), as was required by the provisions of Mississippi Code Annotated, Section 77-3-11 (1972), which reads in pertinent part as follows:

 (1) No person shall construct, acquire, extend or operate equipment for manufacture, mixing, generating, transmitting or distributing natural or manufactured gas, or mixed gas, or electricity, or water, for any intrastate sale to or for the public for compensation, or for the operation of a public utility operating a business and equipment or facilities as contemplated by subparagraph (3) of paragraph (d) of section 77-3-3, without first having obtained from the commission a certificate that the present or future public convenience and necessity require or will require the operation of such equipment or facility.

 On October 20, 1981, the MPSC issued its" Order Granting Certificate of Public Convenience and Necessity. "Pursuant to this permission, appellant MP&L proceeded to acquire the right-of-way for the fifty-one mile high voltage line. Under this procedure, set up by the legislature, everything would have gone smoothly had all affected landowners and MP&L agreed on the sale and purchase of the right-of-way. This effort, however, was interferred with when the four sets of property owners involved in this appeal would not agree on a purchase and sale of their property for the electrical power line.

 The next step in the cause was the filing by appellant MP&L of four petitions for condemnation in the Special Court of Eminent Domain, under the provisions of MCA 11-27-2, et seq. (1972). The particular section granting MP&L authority to file the condemnation proceeding is MCA 11-27-47, which gives eminent domain rights to all companies

 . . . organized for the purpose of building or constructing pipelines and appliances for the conveying and distribution of oil or gas or for the purpose of constructing, maintaining and operating lines for transmitting electricity for lighting, heating and power purposes, or for the purpose of constructing, maintaining and operating lines and appliances for storing, transmitting and distributing water and for transmitting, treating and disposing of sewage, are hereby empowered to exercise the right

 of eminent domain . . . .

 The condemnation petitions all had attached thereto as an exhibit, and made a part of the petition, the hereinbefore mentioned order of the MPSC.

 The appellees filed their motions to dismiss the condemnation proceedings under the provisions of MCA 11-27-15, which provides in part as follows:

 Any defendant may, not less than five (5) days prior to the date fixed for the hearing of the petition and in the same court where the petition is pending, file a motion to dismiss the petition on any of the following grounds: (1) that the petitioner seeking to exercise the right of eminent domain is not, in character, such a corporation, association, district or other legal entity as is entitled to the right; (2) that there is no public necessity for the taking of the particular property or a part thereof which it is proposed to condemn; or (3) that the contemplated use alleged to be a public use is not in law a public use for which private property may be taken or damaged. Any such motion, if filed, shall be heard and decided by the judge as a preference proceeding, without a jury, prior to the hearing on the petition.

 In addition to the above set out statutory grounds for dismissal of the condemnation petitions, appellees contended that the real purpose for the construction of the high voltage line was for interconnection of the corporate utility entities owned solely by Middle South Utility System. These entities are MP&L, LP&L, Arkansas Power & Light (AP&L) and New Orleans Public Service, Inc. (NOPSI). Appellees alleged that this proposed construction was not an intrastate operation subject to being under the jurisdiction of the MPSC. The petitions for dismissal contended that the scheme for constructing the high voltage line was to carry electricity interstate from Grand Gulf Generating Plant to LP&L facilities. Appellees contend that the allegation by appellant of incidental benefit to MP&L customers is a masquerade to justify constructing the interconnecting high power line. Appellees contend that the line was not for public use or public necessity as those terms apply to the utility

 and its consumers in the State of Mississippi. Contention is made by appellees that the purpose of the line is" interstate "rather than" intrastate ", as was stated in the MPSC order attached and made a part of the condemnation proceedings.

 After an evidentiary hearing consisting of testimony from the director of engineering officer of appellant, interrogatories and answers thereto, requests for admissions, stipulations and documents, such as corporate minutes, the circuit judge heading the Special Eminent Domain Court dismissed all four condemnation proceedings and the condemnor MP&L appeals here as a preference case.

 The order dismissing appellant's petitions recites what we hereinafter shall discuss as material findings of fact. Unlike other judicial proceedings, the Special Court of Eminent Domain results in the circuit judge [in counties where there is no county court] being the finder of facts in determining whether or not the condemnation petitions should be dismissed under the hereinbefore quoted MCA 11-27-15 (1972).

 The lower court's order in its finding of facts on material issues, found:

 It is conceded that no Mississippi customer would be served off of the transmission line in question and that the line would be used solely to transmit electric current from the Franklin EHV sub-station to Louisiana Power & Light Co. It is admitted that the Mississippi Public Service Commission will not have jurisdiction to establish or approve rates for sale of electricity interstate to Louisiana Power & Light Co.

 Petitioner is proceeding under MCA 11-27-47 (1972), which provides, in part, that such companies are hereby empowered to exercise the right of eminent domain. Mississippi Constitution, Article 3, Section 17 (1890) provides in part that:" The question whether the contemplated use be public shall be a judicial question and as such, determined without regard to legislative assertions that the ...


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