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Revised Statutes of Newfoundland 1990
AN ACT RESPECTING CERTAIN POWERS OF PUBLIC UTILITIES
1. This Act may be cited as the Public Utilities Acquisition of Lands Act.
RSN1970 c323 s1Back to Top
2. In this Act
(a) "board" means Board of Commissioners of Public Utilities;
(b) "main" means a tank, storage unit or pipe for the storage, transmission, delivery or furnishing of gas;
(c) "public utility" means a person, including the lessee, trustee, receiver or liquidator of the person, and a firm or corporation which owns, operates, manages or controls in the province equipment or facilities for
(i) the transportation of persons or property by ferry for the public for compensation,
(ii) the transportation of persons or property by motor vehicles for the public for compensation,
(iii) the conveyance or transmission of messages or communications by telephone where the service is offered to the public or a corporation for compensation,
(iv) the production, generation, storing, transmission, delivery or furnishing of electric power or energy, water or steam heat either directly or indirectly to or for the public for compensation,
(v) the production, storing, transmission, delivery or furnishing of gas through mains either directly or indirectly to or for the public for compensation;
(d) "telephone line" means devices, real estate, franchises, easements, apparatus, fixtures, property, appurtenances and routes used, operated, controlled or owned by a public utility to facilitate the business of affording telephone communication for hire, and conduits, ducts, poles, wires, cables, cross-arms, receivers, transmitters, instruments, machines and appliances, connected or used in the business; and
(e) "transmission lines" means the plant, transmission lines, distribution lines, works, pipe or pipe lines, pole or pole lines, tunnels, ditches, flumes, viaducts of a public utility engaged in the production, generation, storage, transmission, delivery or furnishing of electric power or energy, water or steam heat either directly or indirectly to or for the public for compensation.
RSN1970 c323 s2; 1986 c42 Sch BBack to Top
Public utility may acquire lands
3. Where it is necessary for the erection, construction or operation of a main, telephone line or transmission line or of a road or right of way by a public utility that the public utility be vested with land or an interest in land, or rights, privileges or easements in respect of the land, the public utility may enter upon the land for the purposes of preliminary surveys and examinations without liability other than for actual damage, and where after the survey and examination an agreement cannot be made for the purchase, the public utility may acquire it in the following manner:
(a) the public utility may apply to the board showing
(i) the situation of the land affected and the description of the land by metes and bounds,
(ii) the names of the owners and occupiers of the land,
(iii) encumbrances on the land that are known to or can be ascertained by the public utility,
(iv) the property, rights, easements or privileges sought to be expropriated, and
(v) the amount which the public utility has offered to pay the person owning or occupying the land;
(b) when the application is presented to the board the board shall set a time and place for the hearing of the proposed expropriation and a copy of the application and a notice giving the time and place of the hearing shall be served on the owner and occupier and upon the mortgagee or lien holder of the land affected at least 30 days before the date set for the hearing or a longer time that the board may decide unless the service is dispensed with as provided in paragraph (h) and the board for the purpose of the hearing has power to summon before it any persons and to require them to give evidence upon oath or affirmation and to produce those documents or things that the board considers necessary;
(c) at the time and place so named the board shall hear parties interested and the evidence and where satisfied that the property, rights, easements or privileges proposed to be expropriated are necessary for the purposes mentioned in this section and are not more extensive than are reasonably necessary, it shall by order declare them, or a portion of them that may be found reasonably necessary, to be vested in the public utility in fee simple, or in another estate that may be sought by the application and which may be considered advisable by the board, free from encumbrances, subject to the payment of damages;
(d) upon the making of the order, the public utility shall file a certified copy of the order in the office of the Registrar of Deeds, together with a plan and description of the lands affected by the order;
(e) before the fixing of the time and place for a hearing, the board may require the public utility to deposit with it a sum not exceeding $100 to reimburse an expenditure made by the owner or occupier on account of the application, and in case the application for the order referred to in paragraph (c) is refused, the board may order that a reasonable sum be allowed out of the deposit to defray the expenses of the owner or occupier of the property sought to be expropriated;
(f) the board shall without delay proceed to assess the amount of the damages for the property expropriated and on payment of the amount to the owner or occupier, the property expropriated shall vest in the public utility in fee simple or in another estate that may be considered advisable by the board, free of encumbrances;
(g) in case a property sought to be expropriated is found to be encumbered by mortgage or judgment, or where the title to it is in dispute, payment of the amount of the damages to the Registrar of the Supreme Court shall have the same effect as payment to the owner or occupier, and a judge of the Trial Division, on the application of an interested person, may order the payment out of court of the amount to the person entitled to it;
(h) where the applying public utility is unable to ascertain the name of the owner of a property, rights, easements, or privileges sought to be expropriated or where the owner is absent from the province or where the ownership is in dispute, the board may order the publication of the application once a week for 4 consecutive weeks in a newspaper published in the City of St. John's and where there is a newspaper published in the locality where the property is situated, once a week for 4 consecutive weeks in that newspaper, and in the same issue of the newspaper in which the board publishes the application the board shall publish a notice that at a time and place named in the notice, which shall not be earlier than 30 days after the date of 1st publication of the notice, the board will hear objections to the proposed expropriation and the publication shall be sufficient service; and
(i) where the applying public utility is unable to ascertain the owner of property, rights, easements, or privileges sought to be expropriated it shall state in its application that the owner is unknown.
RSN1970 c323 s3; 1986 c42 Sch ABack to Top
Telephone and power companies may expropriate
4. (1) A public utility which provides telephone service, electric power or energy or heat may, with the consent of the board and subject to the conditions that the board may impose, and in accordance with this section, expropriate land or an interest in land, or rights, privileges or easements in respect of land for the purpose of erecting or placing on or under the land poles, anchors, conduits or pipes and for installing, operating and maintaining underground and overhead conductors to provide that telephone service, electric power or energy or heat.
(2) The public utility may, by its agents, employees, engineers, contractors, employees or persons authorized by the public utility, enter upon the land and do work necessary to survey or prepare a plan of the land for the purpose of preparing a notice to be served under subsection (4).
(3) An action does not lie against the public utility or another person for loss or damage suffered by a person arising out of anything done under subsection (2) but a claim for actual damages allegedly arising out of anything done under subsection (2) may be considered for purposes of assessing damages under this section.
(4) The public utility shall
(a) serve a written notice on the owner or purported owner of the land to be expropriated and on other persons who are known by the public utility at the time when the notice is served to have an interest in the land; or
(b) where the owner is incapable of conveying the land or cannot be found in the province or is not known to the public utility or where for another reason personal service cannot be conveniently effected, post a written notice in a conspicuous place on the land.
(5) A notice served or posted under subsection (4) shall
(a) contain a plan showing the proposed location of the poles, anchors, underground cables, conduits or pipes which are to be erected or placed on or under the land;
(b) state the purpose for which the land is required and that it is being taken under this section;
(c) name the public utility which is expropriating the land; and
(d) be signed by or on behalf of the public utility.
(6) Ten days after a notice is served or posted under subsection (4) the title to the land vests in the public utility.
(7) The public utility may after title to the land vests in it under subsection (6) enter upon the land for the purpose of erecting or placing on or under it and installing, operating and maintaining poles, anchors, conduits, pipes or overhead or underground conductors.
(8) The public utility shall immediately after serving or posting a notice under subsection (4) send a copy of the notice to the board.
(9) After the board receives the copy of the notice it shall assess the damages to be paid to the owner or other person interested in the land.
(a) the public utility is unable to ascertain the name of the owner of the land;
(b) the owner of the land is an infant;
(c) the ownership of the land is in dispute; or
(d) the land is encumbered by a judgment, mortgage or other encumbrance
the public utility may pay the damages payable in respect of the land into the Trial Division and the receipt of the Registrar of the Supreme Court for money paid into court under this subsection constitutes a full and valid discharge of the public utility in respect of payment of damages for the expropriation of the land.
(11) A judge of the Trial Division may on the application of the owner or other person interested in the land make the order that the judge considers appropriate about payment out of court of the money paid into court under subsection (10).
(12) Where a person claims to be the owner of land considered to be part of a highway reservation as defined in regulations made under the Department of Works, Services and Transportation Act the public utility may, notwithstanding that claim, under section 79 of that Act enter upon the land and erect or place on or under it poles, anchors, underground or overhead conductors, conduits or pipes as if the land formed part of the highway reservation.
(13) A person referred to in subsection (12) may refer his or her claim to a court and where the court finds that that person has an interest in the land referred to in subsection (12) or in a part of it the court shall refer the matter to the board and the board shall assess the damages to be paid to that person by the public utility in respect of the land entered upon or used by the public utility.
RSN1970 c323 s4; 1974 No57 Sch C;
Clarification of titles of public utility
5. (1) Where, before June 14, 1951, a public utility has erected, constructed or operated a main, telephone line or transmission line on land or has as a result affected the rights of an estate in land enjoyed by a person and the public utility wishes to clarify its title to the land or its rights to affect the estate in land, the public utility may proceed under this Act and be vested with the title that the board may consider appropriate on payment of the sum of money that the board would assess under similar circumstances arising under section 3 and the vesting of the title shall be retroactive to the 1st use of land by the public utility company.
(2) Where the main, telephone line or transmission line has been erected, constructed or operated before June 14, 1951, it is presumed to have been erected under deed of the owner of the land jointly signed by persons whose rights to the land are affected.
RSN1970 c323 s5Back to Top
Record of proceedings
6. (1) A record shall be kept of proceedings before the board.
(2) An order of the board under section 3 shall not be valid or effective to vest in a public utility title to property having a greater value than $5,000 unless the order is approved by the Lieutenant-Governor in Council.
(3) An appeal may be made to the Court of Appeal from an order of the board given under section 3 upon a question of law or fact by motion before the Court of Appeal provided the person wishing the appeal gives notice of the motion to the board and persons and public utilities present at the hearing and files the notice in the Registry of the Court of Appeal within 2 weeks after the order is made by the board and the notice shall contain the grounds of the appeal.
(4) Upon receipt of the notice referred to in subsection (3) the board shall within 1 week or a further period that the court may order forward copies of the record of proceedings before it to the Registrar of the Court of Appeal.
(5) Upon hearing of the motion and other hearings that the court may order, the court may confirm, vary, or disallow the order of the board or may return the matter to the board for further hearing.
RSN1970 c323 s6; 1974 No57 Sch C; 1978 c35 s19Back to Top
Public utility has no right of entry
7. Rights of entry, possession, expropriation or otherwise under section 3, 4 or 5 shall not be exercisable by a public utility in reference to or in respect of lands or an interest in land belonging to another public utility.
RSN1970 c323 s7Back to Top
Proceedings may be transferred
8. The board may transfer proceedings under this Act before the board to the Trial Division and further proceedings shall be before that court which shall have the rights, powers and discretions of the board under this Act and orders of the court have the same force as orders of the board and are subject to appeal in the same manner.
1986 c42 Sch BBack to Top
9. The powers granted by this Act shall be in addition to and not in substitution for the powers possessed by a public utility under another Act.
RSN1970 c323 s9
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