metal towers of the Public Service Electric and Gas Company rear themselves to bear their overhanging high tension power lines. Any basis for such suggestion is further dissipated by the fact that the defendant recently granted permission to the Jersey Central Power and Light Company to install a pipe line through its residential zone albeit one smaller in diameter.
The defendant stands only upon the suggestion of its mayor that other routes are available, which is corroborated by another witness. Neither is qualified to testify as to the engineering feasibility of the transportation of natural gas with relation to the installation of the pipe line or the maintenance and operation thereof. The only efficacy of this testimony rests in the statements that the pipe line could be otherwise routed. This is almost exiomatic for as one of the defendant's witnesses on cross examination admitted a pipe line can be laid practically anywhere, including the side of the Empire State Building if expense is of no consideration.
On the other hand the plaintiff has shown logical, efficient and economical reasons for following the right-of-way of the Public Service Electric and Gas Company in this particular congested industrial portion of this state. By doing so it insures a minimum of inconvenience to, and destruction of property of, others.
In a somewhat similar situation dealing with the condemnation of land for pipe line purposes the court in the case of Williams v. Transcontinental Pipe Line Corp., supra, stated:
'The claim is merely that, in the exercise of its rights, the defendant should have run its line across the property of some one else, or crossed petitioners' property at a different place.
'It is obvious that such a contention must fail. If a landowner, merely by showing that it would be possible for a utility line or highway to avoid crossing his property, could compel the condemnor to relocate its line, no power line, railroad, pipe line, or highway could ever be located properly to serve the public. The determination of what property is needed to accomplish the public purpose for which the right of eminent domain is given must of necessity rest primarily with the agency charged with carrying out the public work. There may be cases where the condemnor so abuses its discretion or acts in such bad faith in locating its line that the court would be justified in intervening; but usually no Judge would take upon himself the burden of deciding the best location for a utility line.' 89 F.Supp. 488-489.
This reasoning is equally applicable to this plaintiff, although it was not necessary for it to exercise its right of eminent domain in the instance under question here. The fact remains that the mere claim by defendant that its ordinance requires plaintiff to locate its pipe line in an alternative route, suggested as available, does not fortify it with power to impede the plaintiff in the prosecution of its legal objective in the field of interstate commerce.
Such an attempt to obstruct interstate commerce under guise of an assertion of exercise of the police power must fail.
Hence I find as
Conclusions of Law
1. That the restraint imposed by the defendant under its zoning ordinance upon plaintiff under the circumstances of this case preventing it from proceeding to install its pipe line as projected within the defendant municipality is unreasonable, arbitrary and without foundation or justification in the health, safety and welfare of the citizens of the defendant and it follows that such interference by defendant constitutes an undue burden upon interstate commerce, and
2. That plaintiff is entitled to an injunction restraining defendant, its officers and agents, from preventing or interfering with the construction by plaintiff of its 30 inch natural gas transmission pipe line in and through the defendant municipality.
An order conforming with these findings should be submitted.