McCrady Case
Supreme Court of Pennsylvania
May 4, 1960
399 Pa. 586
The order of the Superior Court granting the appellant a new trial is reversed and the record remanded to the Superior Court for disposition there of the appellant‘s motion for a new trial on the basis of the other reasons assigned exclusive of the trial court‘s charge on alibi.
McCrady Case.
David E. Abrahamsen, Deputy Attorney General, with him Frank E. Roda, Assistant Attorney General,
John B. Nicklas, Jr., with him Frederick F. Jones, and Gifford, Graham, MacDonald & Illig, and McCrady, & Nicklas, for appellee.
OPINION BY MR. JUSTICE BENJAMIN R. JONES, May 4, 1960:
Roland A. McCrady, the appellee, has been for many years the owner of a 190 acre farm located in Springfield Township, Erie County. The northwest corner of that farm, triangular in shape, is bounded on the north by U. S. Highway Route No. 20, on the south by Pennsylvania Highway Route No. 5 and on the east by appellee‘s land.
Within this triangle—consisting of approximately 2 1/4 acres—appellee in 1931 erected a gasoline service station and a restaurant together with a parking area. Under its power of eminent domain and for the purpose of straightening Route No. 5, the Commonwealth in 1935 effected a taking of approximately fifteen feet along the sоutherly boundary of appellee‘s triangular tract of land including a portion thereof upon which gas pumps were located. After appellee learned of this taking he presented no claim for any damages and continued to operate, without any interference, the gas pumps on the land taken by the Commonwealth. In 1951 the appellee tore down the old and erected a new gasoline station and at the same time enlarged and remodeled the restaurant building.
On April 30, 1957, the Governor and the Secretary of Highways approved a plan for further highway construction in the area on and adjacent to appellee‘s triangular plot and this plan was filed in the office of
The Department of Highways, acting through its chief area engineer, refused to change, upon appellee‘s request, either the width or the location of the access ways. These access ways were located in such position that ingress and egress to and from the gasoline station, the restaurant and parking area were rendered exceedingly difficult and, in some instances, impossible. The narrow width of the access ways prevented the entry of large trucks and truck-trailers—representative of a considerable volume of the business of the gasolinе station—unless such trucks or truck-trailers first turned to the left into the most southerly land of the westbound two lane Route No. 5 or drove over the the almost insurmountable curbing. Socony Mobile Oil Company, appellee‘s lessee of the gasoline station,
In an attempt to ensure the future operation of his commercial enterprises within the triangle, appellee was forced to relocate both the buildings and parking area. The gasoline statiоn was torn down and a new gasoline station located at another spot within the triangle. Because of the juxtaposition of the gasoline station and the restaurant the latter had to be completely changed and a new entrance thereto constructed. The parking lot had to be relocated, and this relocation required the placement of pipes to carry off the water of а creek in the rear of the restaurant, the deposit of considerable fill over the area and blacktopping of the entire area in order to render it suitable for the parking of automobiles of customers of the restaurant and the gasoline station.
An examination of the instant record indicates that the Commonwealth‘s plan adopted on April 30, 1957 completely insulated and isolated apрellee‘s triangular strip of land in so far as commercial enterprises conducted thereon were concerned. Appellee was faced with the alternatives of either ceasing any commercial operations on the premises or of relocating the buildings in which such operations took place to fit in with the new construction, particularly the location of the new accеss ways and curbing.
The matter came before a board of viewers and, on appeal therefrom, before the Court of Common Pleas of Erie County. After a hearing, a jury awarded appellee $27,500 which consisted of damages of $25,
The Commonwealth thus poses the issue: should not the effect on a landowner‘s business of the installation of curbing along his highway frontage be excluded as an element of damage in an eminent domain proceeding where there has been no total deprivation of access?
In the determination of this issue certain well-established principles of law must be kept in mind. First, as stated by Mr. Justice (now Chief Justice) JONES in Koontz v. Commonwealth, 364 Pa. 145, 147, 70 A. 2d 308: “It is, of course, not open to dispute that, before the Commonwealth can be made to answer, in the prеsent state of the statute law (
The Commonwealth denies liability for appellee‘s damages on two grounds: (1) that, in the exercise of its police power, it provided for the curbing аnd access ways and, for any diminution of use therefrom of appellee‘s property, it is not liable in damages; (2) that, even if it be considered that it was exercising its power of eminent domain, appellee‘s damages were consequential in nature and noncompensable.
Section 420 of the Act of June 1, 1945, P. L. 1242, Art. IV,
Inferentially at least, the Commonwealth concedes that it could not, even under its police power, totally deprive appellee of access rights to his property although it does contend that it сould regulate and limit such rights. By the construction of this curbing at heights varying from 6” to 12” the Commonwealth sealed off and isolated this triangular portion of appellee‘s land and, for all practicable purposes, doomed the commercial enterprises conducted thereon unless appellee relocated the building structures. While the Commonwealth did provide five access ways yet such ways were оf such width and so located as to effect a practical denial of any access to the property for the purposes for which it was employed. The court below in its opinion stated in this connection: “To rehabilitate the property for use as a gasoline station, appellee made many changes. With a new building and by rearranging a restaurant building also on the property, he was ablе to make it possible for the lessee to resume business. It is appellee‘s contention, with which we agree, that the taking of the narrow strip of land around most of appellee‘s property in 1957 and the erection of curbing which rendered useless the gasoline station, caused damage for which appellee is entitled to compensation. The appellant contends that inasmuch as it erected the curbing on its own
Appellee relies on decisions, in certain extraordinary situations, wherein it has been held that “there need not be an actual, physical taking, but that any destruction, restriction or interruption of the common and necessary use and enjoyment of property in a lawful manner may constitute a taking for which compensation must be made to the owner of the property“: Sansom Street, Caplan Appeal, 293 Pa. 483, 143 A. 134; Philadelphia Appeal, 364 Pa. 71, 75, 70 A. 2d 847; Miller v. Beaver Falls, 368 Pa. 189, 82 A. 2d 34; Troup et ux. v. North Bethlehem Borough, 122 Pa. Superior Ct. 198, 186 A. 306. These cases are not presently ap-
In the instant factual situation the Commonwealth actually took a portion, albeit comparatively small, of appellee‘s land as part of its general plan of highway construction in the area of the triangle. Uniquely, the taking of this portion of appellee‘s land was so vital to the eventual curbing around the triangle that the one could not have been accomplished without the other and the damages which resulted were direct and nоt consequential. As a direct—not a consequential—result of the taking of this land as part of the general plan of the Commonwealth the construction which followed effectively denied to the appellee and his business invitees access to the land and resulted in a cessation of appellee‘s commercial activities. The deprivation of such use of the land for the purpose it was being emрloyed required on appellee‘s part a rearrangement and relocation of his commercial enterprises all at his loss and expense.
In arriving at the difference between the fair market value of this land before and after the taking the trial court properly permitted the jury to consider as elements of damage the effect of the curbing and the unsuitably located access ways оn free and unlimited access to appellee‘s property. In Breinig et ux. v. Allegheny County et al., 332 Pa. 474, 480, 2 A. 2d 842, we said: “Where land is taken ... for highways, the abutting owner retains, as an incident to ownership of the remainder of his land, the right of access, or of
In Westinghouse Air Brake Co. v. Pittsburgh, 316 Pa. 372, 375, 176 A. 13, this Court stated: “In condemnation cases to ascertain the damages accruing to an owner from the appropriation of his land or the consequential injury that may follow such appropriation, the usual and ordinary standard is the difference in the market value before and after taking. Estimates as to the costs of rebuilding specific items of property or injury to particular uses affected by the taking, are not recoverable or admissible as distinct items of damage, but such losses may become useful as elements bearing on the market value before and after the appropriation.” That rule was properly followed by the court below under the unusual circumstances therein presented. As surеly as night follows day, the injury to, and the deprivation of, the use of appellee‘s property followed the taking by the Commonwealth of the strips of land on the northern and southern boundaries of this triangle. Equity, justice and an adherence to principles long recognized by this Court in eminent domain proceedings require that this verdict be upheld.
Judgment affirmed. Costs on the Commonwealth.
I cannot conclude that the small taking here affected the ingress to or еgress from plaintiff‘s land. On the contrary, the testimony clearly shows that the taking was in no way related to the installation of the curbing. Since there was no taking, the rule established in F-K Market House Co., Inc. v. Reading, 310 Pa. 493, 165 Atl. 398 (1933) applies. I would reverse and grant a new trial: Johnson‘s Petition, 344 Pa. 5, 23 A. 2d 880 (1942).