15 Pa. Commw. 328 | Pa. Commw. Ct. | 1974
Opinion by
The plaintiffs, Charles D. Vance and Patricia H. Vance, Ms wife, seek our order restraining the Secretary of the Department of Transportation and H. J. Williams Company, a road builder, from constructing a pipe to drain water from a township road. The defendants have filed preliminary objections in the nature of demurrers raising the Commonwealth’s and the Secretary’s constitutional immunity from suit.
A demurrer, of course, admits as true all facts which are well and clearly pleaded, but not the pleader’s conclusions or statements of law. Commonwealth’s Crosstown Expressway Appeal, 3 Pa. Commonwealth Ct. 1, 281 A. 2d 909 (1971). The plaintiffs aver that they are the owners of real property
We have concluded that the complaint must be dismissed, but not on the grounds asserted by the defendants. While the Commonwealth’s immunity extends to actions for injunctive relief (Conrad v. Commonwealth, Department of Highways, 441 Pa. 530, 272 A. 2d 470
The disqualifying infirmity of the plaintiffs’ complaint, it seems to us, is its failure to state a cause within equity’s jurisdiction. The Department of Transportation has specific statutory power to do what the Secretary here proposes — the construction of facilities for carrying surface waters from the public roads. Section 417 of the State Highway Law, Act of June 1, 1945, P. L. 1242, as amended, 36 P.S. §670-417, is pertinently as follows: “The department shall have authority to enter upon any lands or enclosures, and cut, open, maintain, and repair such drains or ditches, inlets or outlets through the same as are necessary to carry the waters from roads, highways, or within, at the top, or base of, slope areas, constructed or improved at the expense of the Commonwealth or under its supervision. Any damages sustained by the owner or owners of land entered upon by the department for such purposes, shall be paid in the same manner as provided by this act in the construction of State highways. The determination of the amount of damage shall be in accordance with the provisions of Article III of this act.” This provision of the statute is cited by the Department as being applica
The Eminent Domain Code, Act of June 22, 1964, Special Sess., P. L. 84, as mnended, 26 P.S. §1-201 et seq., would be applicable
Our case of Pennsylvania Gas and Water Company v. Jacob G. Kassab, 14 Pa. Commonwealth Ct. 564, 322 A. 2d 775 (1974) relied on by the plaintiffs, is clearly different. There, a public utility serving domestic water to 25,000 customers in and near Wilkes-Barre and some of its customers, including one substantial industry, sued to enjoin a highway project which, it was alleged, would result in the pollution and substantial reduction in capacity of the utility’s reservoir. Not only was it not apparent on pleadings there filed that the customers of the utility would have recourse to the procedures of the Eminent Domain Code in the pursuit of their cause, the difference between an allegation that the supply of water to a large part of the public was endangered and an averment of prospective injury to land of one owner from the discharge of surface water is such that a decision not to grant summary judgment in the former case is no authority for dismissing preliminary objections in the latter.
Complaint dismissed.
By their deed attached to the complaint we gather that the plaintiffs’ property when they purchased it in 1965 for $31,850 contained about 25 acres, that it abuts Conodoquinet Creek, and that it was improved with a dwelling house and barn.
Providing: “It shall be unlawful for any person or municipality to put or place into any of the waters of the Commonwealth, or allow or permit to be discharged from property owned or occupied by such person or municipality into any of the waters of the Commonwealth, any substance of any kind or character resulting in pollution as herein defined. Any such discharge is hereby declared to be a nuisance.”
Providing: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”
Section 302 of the Code makes it applicable to all condemnations; Section 903 repeals inconsistent Acts or parts of Acts; Section 201(3) includes the Commonwealth within the definition of “condemnor;” Section 201(1) defines “condemn” as the act of taking, injuring or destroying private property; and Section 402 provides that aU condemnations shall be effected by the filing of a declaration of taking.