The opinion of the court was delivered by: FORMAN
In the first count of its complaint the plaintiff, Transcontinental Gas Pipe Line Corporation, alleges, among other things, the following: It is authorized and empowered by a certificate of public convenience and necessity issued to it by the Federal Power Commission on November 18, 1948, as modified by an order issued by said Commission on March 1, 1950, pursuant to the Natural Gas Act, 15 U.S.C.A. § 717 et seq., to construct and operate a pipe line for the transmission of natural gas from points in the States of Texas and Louisiana to points in the States of Pennsylvania, New Jersey and New York. It is engaged in the construction of a main gas pipe line, generally 30 inches in diameter, approximately 1800 miles in length, passing through 14 states.
Plaintiff has obtained in Middlesex County, New Jersey, from owners of lands in the vicinity of and in the defendant Borough of Milltown, easements and rights of way or other authorizations for the underground installation of its pipe line extending in a continuous line from a point several miles south of the Borough of Milltown to a point several miles north of said municipality and extending approximately 1800 feet through Milltown.
Beginning in January of 1950 the plaintiff requested the defendant Borough of Milltown to take appropriate action to determine that the public easement in two streets under which the plaintiff proposed to run its pipe line would not be interfered with. This request was referred to the Planning Board of the defendant which reported to the Borough Council its disapproval of the plaintiff's pipe line project and recommended that it be prohibited from installing its pipe line within the corporate limits of said municipality. The municipal authorities gave favorable action upon the request notwithstanding the Planning Board's recommendation, but later reversed themselves and finally ordered the plaintiff to cease the projected work of installing the pipe line in Milltown.
The complaint goes on to allege that the plaintiff has expended large sums of money in the acquisition of the rights of way for its pipe line within Milltown and in its vicinity, which property will become worthless and useless if the plaintiff is unable to install its pipe line therein; that the action and threats of the defendant constitute unlawful interference with interstate commerce and deprive plaintiff of property without due process of law, contrary to the provisions of the Constitution of the United States.
In the second count of the complaint the plaintiff alleges that its pipe line is being constructed in and through the Borough of Milltown beneath the surface of the ground wholly within the limits of a strip of land 100 feet in width, owned, used and occupied by the Public Service Electric & Gas Company, a New Jersey corporation, as and for a high tension electric transmission power line and does not cross, traverse or otherwise affect any public streets of the municipality.
Plaintiff prays that the defendant be restrained from interfering with or prohibiting the construction by plaintiff of its pipe line through the Borough of Milltown and from prosecuting plaintiff or its agents on any charge arising out of the construction, operation, maintenance, repair, relocation or removal of said pipe line.
The defendant's answer generally denies the allegations of the complaint and specifically denies that the defendant intended to prevent and prohibit plaintiff from constructing and operating its pipe line at any location within the corporate limits of Milltown other than the specific route referred to in the complaint, asserting that another route or routes might be less dangerous or less objectionable to the residents of Milltown.
The answer further sets up some eight separate defenses to the complaint in the second of which it charges that '2. Defendant in the exercise of its sound discretion for the protection of the health, safety, welfare and property of the citizens residing within its corporate limits has denied plaintiff permission to construct its natural gas transmission pipe line through the Borough of Milltown over and upon the specific route referred to in the Complaint.'
In its third separate defense the defendant states
'1. Plaintiff has requested permission to construct its 30 inch natural gas transmission pipe line in and through the Borough of Milltown, partially within the limits of a strip of land one hundred in width owned, used and occupied by the Public Service Electric & Gas Company, a New Jersey corporation or its subsidiaries as and for a high tension electric transmission power line, on which strip of land one hundred feet in width is now constructed and in operation a high tension line carrying eight cables through which electric power is transmitted at extremely high voltages.
'2. The construction of a 30 inch natural gas transmission pipe line immediately adjacent to the aforesaid high tension electric transmission power line would create an extreme hazard, endangering the health, safety, welfare and property of the residents and citizens of the Borough of Milltown, particularly those residing immediately adjacent to the right-of-way of the Public Service Electric & Gas Company on which the high tension electric transmission power line is constructed.'
In its fourth separate defense to the complaint the defendant alleges that the action of the plaintiff is in violation of its zoning ordinance in the following language:
'1. Plaintiff proposes to construct its 30 inch natural gas transmission pipe line in the Borough of Milltown, through an area which has been established as a residential district by an Ordinance of the Borough of Milltown, entitled: 'An Ordinance to limit and restrict to specified districts or zones and to regulate therein buildings and structures, according to their construction and the nature and extent of their use in the Borough of Milltown; establishing a Board of Adjustment; and providing penalties for the violation thereof.', which Ordinance was adopted on June 14, 1943.
'2. The provisions of the aforesaid Zoning Ordinance of the Borough of Milltown prohibit among other things a 30 inch natural gas transmission pipe line in and through that part of the Borough of Milltown in which plaintiff ...