[41 Del.Ch. 532] S. Samuel Arsht and David A. Drexler, of Morris, Nichols, Arsht & Tunnell, Wilmington, for appellants.
David F. Anderson, of Berl, Potter & Anderson, Wilmington, for appellee.
CAREY, Justice, STIFTEL, Judge, and SHORT, Vice-Chancellor, specially assigned, sitting.
The defendants below have appealed from a declaratory judgment of the Court of Chancery in New Castle County. The facts giving rise to the judgment are fully stated in the opinion of the Chancellor and will not be repeated here. See Delaware Power and Light Co. v. Terry, Del.Ch.,194 A.2d 553. We are satisfied that the Chancellor's decision was correct and it will be affirmed on the basis of his opinion.
Before us, appellants brought up an argument which we believe was not made in the Court below. They suggest that, under the interpretation of the Chancellor, T. 26 Del.C. § 901 becomes a meaningless duplication of § 906 so far as it concerns the right to use public highways.
§ 901 was first enacted in 1913 several years after the original adoption of § 906. In its original form § 901 conferred upon electric utilities, telegraph and telephone corporations the right to construct their lines across or under any canals or other waters with the consent of the owners; it included the power of condemnation. 27 L. of D.Ch. 189. It was amended in 1923 to read substantially as it exists today. 33 L. of D.Ch. 106.
To the limited extent that it empowers electric utility corporations to use the public highways outside of municipalities, we agree that it appears to be a duplication of § 906, but we attach little significance to that fact. The three types of corporations already had certain condemnation powers to obtain easements under and over canals ...