Hession Condemnation Case
Hession Condemnation Case
Opinion of the Court
Opinion by
Appellees are owners of real estate located on the northwest corner of the intersection of Longshore Street
Pursuant to the Eminent Domain Code, Act of June 22, 1964, P. L. 84, §101 et seq., 26 P.S. §1-101 et seq. (Supp. 1967), appellees petitioned for the appointment of viewers to assess damages allegedly sustained as a result of the vacation of State Road south of Long-shore and the construction of the new State Road. The board of viewers made an award of $20,000. In accordance with §516 of the Eminent Domain Code, 26 P.S. §1-516 (Supp. 1967), the Commonwealth appealed the report of the viewers and, under subsection (4) of that section, objected specifically to the awarding of any damages contending that as a matter of law no' compensable damages had been proven. The common pleas court found that appellees had sustained compensable damages and awarded a jury trial to determine the amount. From that order the Commonwealth has appealed.
The opinion of the court below discusses at some length the appealability of its order. Although no motion to quash has been filed, this question merits our attention. Section 523 of the Eminent Domain Code, 26 P.S. §1-523 (Supp. 1967), provides: “Either party may appeal to the Supreme or Superior Court as the case may be, from any final order or judgment of the court of common pleas. . . .” The term “final order” is defined in §517, 26 P.S. §1-517 (Supp. 1967) : “All objections, other than to the amount of the award, raised by the appeal shall be determined by the court preliminarily. The court may confirm, modify, change the report or refer it back to the same or other viewers. A decree confirming, modifying or changing the report shall constitute a final order.” Since §517 further requires that the trial court must make its own determination (unless a jury trial has been demanded) of the amount of damages, the action of the court below in confirming the viewers’ decision as to compensability was the most it could do. If the word “confirm” in §517 is to be given content, then the action of the court below was a confirmation of the viewers’ action. Section 517 tells us that such a confirmation is a final order and §523 allows appeals from all final orders.
In Dacar Chemical Products Company v. Allegheny County Redevelopment Authority, 425 Pa. 343, 228 A. 2d 778 (1967) we held that a lower court order which remanded the matter to the viewers was appealable under §523. It would thus seem mandated that an order which leaves open only the issue of the amount of damages is also appealable. We well realize that the Legislature has created a situation where what would traditionally be an interlocutory order is appealable. However, the language of the Eminent Domain Code
II.
Appellees contend that their right to compensation can be found in either §612 or §613 of the Code. Section 612 provides for damages where an abutting owner is injured by a change of grade, an interference with access or a diminution of surface support. Section 613 deals specifically with the vacation of public roads: “Whenever a public road, street, or highway is vacated, the affected owners may recover damages for any injuries sustained thereby, even though no land is actually taken.” We are convinced that neither section supports appellees’ right to compensation, for we believe that whatever damages are permissible in this litigation under §612 are also subsumed under the more general language of §613 and that, under §613, no compensable damages have been demonstrated.
Although §613 speaks in terms of damages “for any injuries” sustained by an owner affected by the vacation of a street, the Joint State Government Commission comments appended to §613 state that the section’s purpose is to place the Commonwealth on a parity with all other condemnors and that the section does not broaden the extent of liability for vacation of streets existing before adoption of the Code. See Joint State Government Commission, 1964 Report—Eminent Domain Code at 44-45. The Commissioners give as an example of the extent of liability In re Melon Street, 182 Pa. 397, 38 Atl. 482 (1897). Melon tells us that the question to be posed is whether the affected owner has suffered an impairment of access to his property. Access, in turn, has been defined by our cases to be the right of ingress and egress. See, e.g., Breinig v. Allegheny County, 332 Pa. 474, 2 A. 2d 842 (1938). It
v The record before the viewers makes it evident that the damage suffered by appellees is a product of the fact that the elevated highway has transformed what was once a heavily traveled highway (State Road) into a street which carries primarily local traffic only.
The Wolfs owned a gasoline station and motel located on the North side of Route 11, a three lane highway passing through Cumberland County. The Commonwealth decided to widen Route 11 in the process of which a medial strip was added. This strip in no way affected the access of westbound traffic to the Wolf property but it did require the eastbound lane of travel to progress some distance along Route 11 before entry could be made to the Wolf gas station-motel complex. Recognizing that the Wolfs were in essence claiming that a change in the traffic pattern on Route 11 had decreased the value of their business property, we stated the issue posed as “whether the Commonwealth may regulate the direction of traffic on a highway by the location thereon of medial dividers the result of which location is to so divert traffic that access to the property of an owner of property abutting the highway is available by a circuitous, rather than a direct, route of travel without becoming liable for the effect of such diversion of traffic on the after value of the abutting owner’s property.”
“ ‘Respondent, as an abutting property owner on a public highway, does not now have and has never had any other property interest in the public highway other than a reasonable right of ingress and egress, as stated. Respondent has never had a property right in the traffic, great or small, on the highway, nor a right to recover damages for a decrease in value of her premises by reason of the diversion of traffic away from her property, nor has she had a property right to have the same amount of traffic pass her property as before or to have it move in the same direction. Respondent’s property right of access has never extended further than the right to enter upon the highway or to leave it and have reasonable connection to the public road system.’”
The first branch of the argument, based upon the following quotation from Wolf (supra at 42, 220 A. 2d at 872), falls with the second: “[T]he Commonwealth, acting under the guise of its police power, cannot effect what amounts to a taking of the rights of abutting property owners without providing just compensation; . . ‘One fact for consideration in determining such limits [of the police power] is the extent of the diminution [of values incident to the property]. When it
The order of the Court of Common Pleas of Philadelphia County is reversed and the record remanded with instructions to enter judgment for the Commonwealth.
Prior to' tbe construction of tlie elevated highway, State Road was used to avoid heavy traffic on both Torresdale and Prankford Avenues. The testimony of appellees’ two real estate appraisers makes it evident that their estimates of the damage suffered is based totally upon loss of traffic. One appraiser characterized the present location of appellees’ tavern-restaurant as “inconspicuous” while the other stated that the elevated highway had destroyed all ‘profitable use” of the premises.
Although the Wolf decision was concerned with the rights of an abutting owner, we believe that the right to compensation of an affected owner under §613 would be no greater. Furthermore, although Wolf was not decided pursuant to the Eminent Domain Code, §613 left existing case law untouched.
estate v. Meier, 388 S.W. 2d 855 (Mo. 1965), cert. denied, 382 U.S. 846, 86 S. Ct. 79 (1965).
Footnote 11 in Wolf could be read to indicate that a distinction should be drawn between loss of traffic occasioned by changes in an existing highway and those produced by the erection of a limited access road. To some uncertain extent a few courts may have adopted such an approach. See Cromwell, Loss of Access to Highways: Different Approaches to the Problem of Compensation, 48 Va. L. Rev. 538 (1962). However, we believe that whether the loss of patronage produced by a change in traffic pattern results from either a rerouting of an existing highway, or the erection of a new one, the problem remains the same—is the decrease in land value caused by a change in traffic pattern and the resultant business impairment compensable.
Dissenting Opinion
Dissenting Opinion by
I cannot agree that, as a matter of law, appellees have suffered no compensable damages under §613 of the Eminent Domain Code. I fail to see how the majority can conclude from the record that appellees’ damage is solely “a product of the fact that the elevated highway has transformed what was once a heavily traveled highway (State Road) into a street which carries primarily local traffic only”. While that undoubtedly is the cause of some of appellees’ damages, the record we have from the board of viewers hardly reveals that it is the only source of damage. Appellees’ expert specifically testified that one of the ele
I would allow appellees an opportunity to prove at trial what portion of their damages flowed from that vacation of Old State Road. In re Melon Street, 182 Pa. 397, 403, 38 Atl. 482 (1897), upon which the drafters of §613 relied, clearly indicates that the fact that appellees’ property can still be reached from three of the four directions is not conclusive: “To draw the line between owners who may and owners who may not recover, at the point where the deprivation of access is total, is to draw it arbitrarily. The abutting owner’s special right in a street as a means of access to his property is not limited to the part of the street on which his property abuts. . . . His right is the right of access in any direction which the street permits. As affecting this right, no distinction can be drawn between a partial and a total deprivation of access; the impairment of the right is a legal injury differing in degree only from its total destruction. . . .” It is entirely possible that appellees at trial could not prove any damages. Melon went on to say, at page 405: “To sustain the right of a claimant to compensation because of the vacation of a street it must appear that the loss results from the depreciation in value of his land because of the change in the street, and his loss must be direct and proximate, and so obvious and substantial as to admit of calculation.” A slightly more circuitous route to travel does not constitute the requisite loss under the Melon standard. Apple v. City of Philadelphia, 103 Pa. Superior Ct. 458, 157 Atl. 325 (1931).
Surely the right of access includes access for patrons as well as for the owner. Cf. Hedrick v. Harrisburg, 278 Pa. 274, 122 Atl. 281 (1923). Access to an owner of a commercial establishment is worthless if his patrons do not also have access. This is not the
I should also like to make one passing remark upon the appealability of the instant order. While I reluctantly concur in the majority’s refusal to quash, I would not do so were the language of the statute susceptible of any other meaning. The bifurcated appeal foisted upon the courts can only be termed a judicial Hydra. Would that a Hercules could appear in the legislature to slay this monster.
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