Turtle Creek Borough v. Pennsylvania Water Co.

Opinion by Mr. Justice Elkin, The matters in dispute between the boroughs and the water company were presented to the court below for determination under the provisions of the Act of April 29, 1874, P. L. 73. The bills were filed by the boroughs to restrain the water company from shutting off the supply of water to consumers because of their refusal to sign contracts to pay increased rates, and to have the court inquire into the alleged unreasonableness of the proposed increase of charges in order that such decrease might be decreed as should be deemed just and equitable under the facts. The pleadings and testimony cover 1,385 pages of the appendix, while it requires ninety-five pages of the paper book to print the requests for findings of facts and of law, the opinions of the court below, and exceptions thereto. This shows how exhaustively the case was presented in and considered by the court below. Every question raised here was fully considered there, and nothing deemed material or helpful to their respec — 411 — tive contentions was overlooked by the vigilance of counsel. The record is a satisfactory one because it 'shows most intelligent presentation by counsel and painstaking care on the part of the learned chancellor. Every question raised was given fair and full consideration, and our concern here will be to determine whether under the facts reversible error was committed in the application of the law. Both sides appealed from the decree and in the present cases we have to do with the appeals of the water company. Learned counsel for appellant state the two fundamental questions in all of the cases to be: (1) The value of the water company plant; and (2) the net earnings the company should be allowed as a fair return upon that valuation. There are seventeen assignments of error, but they all relate to the two fundamental questions just stated, and need not be discussed separately. It is strongly urged by counsel for appellant that the court below should have found as a fact under the evidence the value of the plant to be $3,300,000, and that it was error to fix its valuation at $2,750,000 as the learned chancellor did. It is argued that this result could' only have been obtained by arbitrarily scaling down the valuations placed upon the properties by the witnesses, or by the disallowance of certain items which should have been considered in arriving at a proper valuation for the purpose of fixing a basis upon which to compute the net earnings to which the company was entitled in order to secure a fair return upon the capital invested. The answer to this position must of necessity depend upon the fact whether the court did disregard the testimony and arbitrarily fix a valuation without reference to the proven facts. It has been necessary to read the testimony of a large number of witnesses in order to intelligently review the findings of fact upon which the court below based its conclusion as to the value of the plant. Having done so, we are not prepared to say that the trial judge either arbitrarily scaled down valuations placed on the plant by witnesses, or entirely — 412 — eliminated certain items which, should have been allowed in fixing the valuation. In considering this question it is important to remember that several witnesses testified as to the value of the plant, each witness having a theory of his own as to the proper method of ascertaining that value, and no two of them were in exact accord. It is true most of the expert witnesses called by defendant placed a higher valuation on the properties than the court fixed, but on the other hand, it is equally true that the testimony produced by the plaintiff would warrant a much lower valuation. In considering the question of valuation the learned court below said: “As is usual in cases of this class, a wide space exists between the testimony of the respective parties as to the value of defendant’s properties, varying from $1,584,354 by the plaintiff, and $3,300,000, and more by one witness, on the part of the defendant.” This is followed by a discussion of the testimony of the witnesses, Lyons, Crowther, Kuichling, Hawley, Forbes, Metcalf, Davison, Pence and Knowles. The discussion of the testimony of these witnesses amounts to a demonstration that the learned chancellor carefully considered the question of value from every angle, and did not act arbitrarily or capriciously in fixing the valuation of defendant’s properties. No doubt counsel for appellant believe that the court should have accepted the statements of their witnesses as the best evidence of value, but the court was not bound to accept their estimates of value as conclusive of the fact, but only to give it the weight to which it was entitled in connection with all the testimony in arriving at a just valuation. Upon the question of value the testimony was conflicting and it was the duty of the court to consider all of the relevant facts in fixing a fair valuation upon the properties. It may be, as appellant contends, that the weight of the testimony would justify a higher valuation, but the question for decision here is whether there was such palpable error in the findings of fact as to warrant a reversal of the decree. — 413 — Appellate courts do not reverse findings of fact by a court of first instance unless there be manifest error. This is the rule of all the cases, and, as we view it, is conclusive against appellant on this branch of the case at bar. The testimony was ample to sustain the conclusion reached, and this is the limit of our inquiry: Rorabaugh’s Est., 229 Pa. 377. It is not ground for reversal on the findings of fact that a different conclusion might have been warranted from the evidence, or that this court might have arrived at a different result if called upon to determine the fact as a court of first instance: Plankington’s Est., 212 Pa. 235. Our duty in reviewing findings of fact, is to ascertain whether there was testimony, which, if believed, would sustain the findings: Oil Well Supply Co. v. Manufacturing Co., 234 Pa. 378. As to the items of “going value,” interest during the period of construction, and the cost of repairing the streets, which appellant contends were not allowed, or at least that there were no distinct findings as to these items, we agree that these were elements to be considered in arriving at a just valuation of the properties, but we cannot, agree that it was the duty of the court to set out in its findings each separate item of value and make the sum total of the separate items the final conclusion of the court as to the valuation of the entire plant. In the opinion of the court in banc on the exceptions to findings of fact and conclusions of law, it is stated that these items were not eliminated by the trial judge in fixing the valuation, but that they were given due consideration. It is further stated that the trial judge did consider “going value” as an element in fixing the value of the plant as a whole; It is not so clear what disposition the court made of the item for street paving, but that it was not overlooked is shown by what the court stated in reference to the same. It may be that some of the items were undervalued, but in the valuation of the entire properties of a company of the magnitude of appellant, we would not feel warranted in re — 414 — versing the decree on the ground that the learned court below may not have given due weight to some of the smaller items included in the total valuation. What we do decide now is that under all the evidence the valuation fixed by the learned court below is a fair one, and that we find no such error as would warrant a reversal of the decree on the ground of under-valuation. The same may be said as to the contention that the earnings of appellant under the rates established by the decree are insufficient, to yield a fair return upon the capital invested. The rates must not be confiscatory and they must be such as to yield a fair return upon a just valuation of the plant. The elements to be considered in fixing the valuation, and what deductions should be allowed from gross earnings for maintenance and operating expenses, for payment of fixed charges, for depreciation and sinking fund purposes, were fully considered by the lower court in the light of many adjudicated cases, and especially of our own cases: Brymer v. Butler Water Co., 179 Pa. 231;. Pennsylvania Railroad Co. v. Philadelphia, 220 Pa. 100. As to the law applicable to the facts of this case, we can add nothing of value to what has been so well said by the learned court below. We are not convinced that the conclusion reached will deny appellant a fair return upon a just valuation of its properties, or that any violence was done to the rights of the water company in the application of the law. It may be proper to suggest here that this conclusion is based upon the findings as they appear in the present record, and is not to be taken as a final adjudication of the •rights of the parties for all time. If in the future it shall be made to appear that the net earnings of the company are not adequate to yield a fair return upon the value of its plant, the courts, or other proper tribunal, may be resorted to for the purpose of having the rates changed so as to meet the conditions that may then be shown to exist. But upon the present record we find no sufficient reason to disturb the decrees entered by the court below. — 415 — We need but advert to the contention of appellant that the court had no jurisdiction to decree repayment to persons who are not named as direct parties to the bills. No authority is cited in support of this position. The bills were filed by the boroughs and two citizens and taxpayers thereof on their own behalf and on behalf of other citizens who are consumers of water. On this question we adopt with approval what was said in the opinion of the lower court sur exceptions to the conclusions and findings filed December 16, 1912. We agree that equity having assumed jurisdiction with respect to the general subject under consideration, especially when some of the prayers asked for this specific relief, the decree may be made broad enough to include every incidental question or dispute within the general purpose. Decrees affirmed. The costs to be paid by appellant.