Nanticoke Borough v. Bell Telephone Co. , 47 Pa. Super. 184 ( 1911 )

Opinion by

Head, J.,

This was a proceeding under the Act of April 17,1905, P. L. 183. As the statute expressly provides that such proceedings shall be heard and decided “in the way and manner provided by law for the hearing of cases in equity,” it would necessarily follow, as we held in P. & A. Tel. Co. v. Braddock, 43 Pa. Superior Ct. 456, that we must accept the findings of fact adopted by the learned judge who heard the cause “as having the same conclusive force and effect as would the verdict of a jury.” We cannot disturb or interfere with them except in cases of flagrant and manifest error.

Practically all of the assignments of error which have been urged upon us complain of the findings of fact. A careful examination of the testimony has satisfied us that the court found no fact without testimony to support it, and we are therefore unable to sustain any of the assignments alleging error in such findings.

The statute declares that the matter to be determined by the court in such a proceeding is “the amount of annual license fees which should be paid to the said municipal corporation in order to properly compensate it for the necessary cost of the services performed or to be performed by it for the inspection and regulation of poles, wires, etc.” As these proceedings are akin to those in equity, not only in form but in substance, it would follow that each of such cases must be determined according as the evidence in that case portrays the conditions that confront the municipality. The statute, too, contemplates that such conditions will change, and hence provides that either party, at any time after two years from a given adjudication, may begin a new proceeding for the purposes of securing some modification of the decree previously-entered. There was ample evidence in the present case to warrant the court in finding that the plant of the defendant company was compact, comparatively new, and that it could be thoroughly inspected by a competent man skilled in that business in about nine hours’- time, and at a cost of about $3.00. There was evidence from competent experts that such an inspection made once in each year would be sufficient to keep the municipality advised as to the general condition of the system and the effect of ordinary wear and tear upon it. It was also pointed out that the company itself was vitally interested in maintaining its poles and wires in a perfect state of repair, and was fully provided with appliances to at once detect any incidental injury to either. This of course did not of itself reheve the municipality from its duty nor deprive it of its right to reasonably see for itself that neither poles nor wires became at any time a menace to the safety of the public in the use of the streets of the borough. Nor did the learned judge below, in his decree fixing the amount of the license fee, restrict the borough to such single inspection. He allowed them a sum which, measured by the number of poles in the borough at the time the decree was made, would compensate the borough for the expense incurred in making such complete and thorough inspection a half dozen times in each year, besides a fair margin for the cost of issuing the permit, tabulating reports, etc. In a word, we think the opinion filed by the learned judge fully vindicates the decree which he has entered and clearly shows that the appellant has no just ground of complaint.

The only assignment of error which may be said to raise a question of law is the first which complains of the action of the court sustaining an objection to the offer of the borough to show the total number of poles not only of the defendant but of all other companies, strangers to the present proceeding, which were maintained within the limits of the municipality. This assignment is in no way pressed upon us in the brief of argument filed by the able counsel for the appellant, and we think the propriety of the action of the court in thus refusing to obscure the single issue raised by the pleadings is manifest.

Decree affirmed.