84 Pa. Commw. 300 | Pa. Commw. Ct. | 1984
Opinion by
Appellants, Edward and Elizabeth Deets and Mountaineer Enterprises, Inc. (Mountaineer), appeal from an order of the Court of Common Pleas of Luzerne County dismissing the appellants’ petition for appointment of viewers to assess eminent domain damages.
On December 14, 1976 Edward and Elizabeth Deets entered into a right-of-way agreement with the Mountaintop Area Joint Sanitary Authority (Authority) allowing a portion of their land to be used for the installation of a sewer line. The Deetses were paid $1 by the Authority for granting the right-of-way.
In response to this error, appellants, pursuant to Section 502(e) of the Eminent Domain Code (Code),
We are aware that our scope of review of a common pleas court order dismissing a petition under the Code is limited to determining whether there is competent evidence in the record to support the findings made and whether an error of law was committed. In Re Condemnation by Redevelopment Authority, 55 Pa. Commonwealth Ct. 612, 423 A.2d 1354 (1980); Breining v. Hatfield Township, 23 Pa. Commonwealth Ct. 394, 352 A.2d 230 (1976).
In order to qualify for relief under the Code, a landowner must suffer an actual or de facto taking which must be the result of action by an entity clothed with the power of eminent domain. See Sections 201 and 303 of the Code, 26 P.S. §§1-201 & 1-303; Espy v. Butler Area Sewer Authority; cf. Petition of 1301 Filbert Ltd. Partnership for Appointment of Viewers, 64 Pa. Commonwealth Ct. 605, 441 A.2d 1345 (1982). If the taking of a landowner’s property by an entity clothed with eminent domain power is done without a prior declaration of taking, our Supreme Court has indicated that the property owner has the option of seeking damages in an action in trespass or compensation for the actual taking under eminent domain. See Pittsburgh National Bank v. Equitable Gas Co., 421 Pa. 468, 220 A.2d 12, cert. denied, 385 U.S. 988 (1966); Garland Chain Co. v. Rankin Borough, 226 Pa. 389, 75 A. 607 (1910). In such a case, if the landowner seeks an appointment of viewers to assess compensation for the taking, the landowner is deemed to have waived the trespass. See Pittsburgh National Bank, 421 Pa. at 470, 220 A.2d at 14; Garland Chain Co., 226 Pa. at 390, 75 A. at 607.
We cannot agree with the appellants’ contention that the actions of the independent contractors were the actions of the Authority itself by virtue of Authority inspectors being present to inspect the work. The evidence contained in the record clearly shows the Authority’s inspectors were only present to ensure that the contractor laid the sewer pipe at the proper depth, that the proper amount of stone was placed around the pipe, as well as other various technical details related to the actual laying of the pipe. The location of the sewer line was the responsibility of the independent contractors and the Authority inspectors had no responsibility to ensure that the sewer line was laid in the right-of-way. The evidence
Therefore, the common pleas court correctly concluded that Appellants
And Now, the 2nd day of August, 1984, the order of the Court of Common Pleas of Luzerne County- at Docket No. 806-C of 1983, dated May 5, 1983, dismissing the petition for appointment of a Board of View, is hereby affirmed.
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-502 (e).
We distinguish this case involving Mountaineer from the facts of St. Catherine Church v. Mountaintop Area Joint Sanitary Authority, 58 Pa. Commonwealth Ct. 181, 427 A.2d 727 (1981). In St. Catherine Church, while .there was no right-of-way agreement signed by the parties, there the action was attributed directly to the authority and there was no intervening negligent act of an independent contractor.
We do note that the record indicates that the sewer line remains on appellants’ property which may constitute a continuing trespass thereby tolling the two-year statute of limitations for an action in .trespass against real property. 42 Pa. O. S. §5524. However, as this issue is not presently before us, we express no opinion thereon.