CHARLESTON.

#### Shepherdstown Light & Water Company *v.*Virginia Lucas *et al.*

(Nos. 6381 and 6381-A)

Submitted April 9, 1929.

Decided May 29, 1929.

(Eehearing Denied July 17, 1929).

*499*George M. Beltzhoover, Jr.,*for plaintiff in error.

*Brown &■ Brown*and *Martin & Seibert,*for defendant in error.

Litz, Judge:

The defendant, Virginia Lucas, complains of the judgment of the circuit court of Jefferson county, in each of these proceedings, condemning rights of way one hundred feet in width over certain lands in said county in which she owns a life estate, on the petition of the applicant Shepherdstown Light & Water Company, for the erection and maintenance by it of an electric transmission line.

The Shepherdstown Light *&*Water Company is a domestic corporation, chartered and organized in the year 1916, with authority, among other powers, “to carry on business of an *500electric light company in all of its branches and in particular to construct power plants or buildings for the generation of electrical current, and to lay down, establish, ñx and carry out all necessary cables, wires, lines accumulators, lamps and works, and to generate, accumulate, distribute and supply electricity either generated by the company or purchased from 'other sources, and to light cities, towns, streets, public places, public or private buildings, factories, mines, railways and other places or things of every kind or description by means of electricity or to enable the same so to be lighted. To carry on the business of electricians, mechanical engineers, distributors of electricity for the purposes of light, heat and motive power or otherwise, and to manufacture, buy, sell, and generally deal in all manner of appliances and things required for or capable of being used in connection with the generation, distribution, accumulation and employment of electricity.” It is and has been, since its organization, engaged in furnishing the citizens of Shepherdstown, Jefferson county, with water and electricity purchased by it from the Potomac Light & Power Company. The proposed line is seventeen miles long and extends from a point on the Potomac River in Jefferson county by Shepherdstown to a point in said county near Millville. Its purpose is the transmission of steam generated electricity produced by the Potomac Edison Power Company at Williamsport, Maryland,. and sold by it to the Shepherdstown Light & Water Company. A part of the current will be delivered by the applicant to its own customers and the surplus sold by it to the Northern Virginia Power Company to supply its patrons. The Potomac Light & Power Company operates two hydro-electric plants on the Potomac River in Jefferson county, each of which produces, according to existing water conditions, from nothing to 2000 kilowatts. The Northern Virginia Power Company is a Virginia corporation, engaged in producing and selling electricity to the public in this state. It owns and operates an obsolete steam plant at Millville, which it contemplates dismantling, of a generating capacity of from 4000 to 9000 kilowatts, and a hydro-electric plant in Jefferson county producing from 200 to 2000 kilowatts. The needs of its customers require *501about 13000 kilowatts. Tbe Potomac Edison Power Company is a Maryland corporation. It bas never qualified to do business in this state. Its steam plant at Williamsport is modern and capable of generating 45000 kilowatts.

Tbe land owner resists tbe right of tbe applicant to condemn mainly on tbe grounds, (1) that it is not authorized under its charter to exercise tbe right of eminent domain; (2) that tbe Potomac Edison Power Company, by reason of its ownership of tbe controlling stock in tbe Potomac Light & Power Company, tbe Northern Virginia Power Company and tbe Sbepberdstown Light & Water Company, is interested in tbe establishment of tbe proposed transmission line; and (3) that tbe line" will be used for tbe transmission of hydro-electric power.

The first ground is without merit because tbe applicant is expressly empowered under its charter to establish transmission lines, and chapter 42 of tbe Code authorizes tbe condemnation of property for that purpose. Tbe second, based upon tbe non-residence of tbe Potomac Edison Power Company which, it is alleged, will be benefited by tbe establishment of tbe proposed line, is also without foundation. It is- not prerequisite to tbe exercise of tbe right of a public service corporation to condemn property that its stockholders be invested with such right.

Tbe defendant contends that because tbe proposed line will connect at Millville with tbe system of tbe Northern Virginia Power Company, which produces some hydro-electricity, its use for tbe transmission of hydro-electric power is possible; and for that reason tbe applicant is deprived of tbe right to condemn by tbe water power act, chapter 54-b, Code, which requires hydro-electric companies to obtain a permit from tbe public service commission before exercising such right. According to tbe evidence for applicant and tbe finding of tbe trial court, tbe line in question, is to be established for tbe sole purpose of conveying steam produced electricity from tbe plants of tbe Potomac Edison Power Company in Maryland. Tbe argument here advanced was presented in *Monongahela West Penn Public Service Co.*v. *C. F. Cunningham Co.,*98 W. Va. 130. One terminus of tbe proposed transmission line *502in that case was within a mile of a partially constructed hydroelectric plant owned by a parent company. It was there said in answer to the proposition here raised: “An additional transmission line being required properly to serve the public with steam-produced electricity, why should the right to condemn an easement for the construction and maintenance of such line be denied merely because at some future time it may be used to carry hydro-electric power? It is presumed that the requirements of the water power act will be observed in the development of water power in the State for the generation of electricity. Moreover, if the Act is valid, the State can compel its observance. The applicant is seeking to condemn the easement for a present legitimate public purpose.”

That the proposed line is not necessary to serve the present customers of the applicant is also presented as a reason for denying to it the right of eminent domain. There is no rule of law or public policy preventing a public service corporation from increasing its service to the public.

The fact that a part of the current to be transmitted over the proposed line will be used by the Northern Virginia Power Company to supply its consumers does not render the establishment of the line any the less a public purpose. In *Brook Electric Co.*v. *Beale,*96 W. Va. 637, an electric power company was permitted to condemn the right of way for a transmission line from a point in West Virginia near Pennsylvania into the latter state, notwithstanding the main purpose of the line to convey electricity from this state into Pennsylvania. In *Nichols*v. *Central Virginia Power Co.,*143 Va. 405, 130 S. E. 764, it was held that the furnishing of electric power by a duly incorporated company, without reservation of private benefit, to a public service corporation, which in turn furnishes the power to the public, is a public use, in the furtherance of which the former corporation may exercise the right of eminent domain. In *State ex rel. Domineck*v. *Superior Court,*5 Wash. 196, 100 Pac. 317, 21 L. R. A. (N. S.) 448, the court said: “Does the fact that the respondent will sell and deliver a portion of its electrical power to "third persons and corporations to be by them used for public and municipal light, and in the operation of railroads or railways, *503afford a sufficient reason for denying to it tbe right of eminent domain? We think not. Courts look to the substance rather than to the form, to the end rather than to the means. If in the end the property is devoted to public use, the mere agency or instrumentality through which that result is accomplished is a matter of no concern.”

No valid reason being urged by the appellant or perceived by this Court for reversal, the judgments complained of are affirmed.

Affirmed.