# Miller v. Commonwealth, Board of Property

> Commonwealth Court of Pennsylvania · November 23, 1987 · 111 Pa. Commw. 240

URL: https://www.frixlaw.com/law-library/cases/6372596

## Case

- **Full name:** Irving Miller, Individually and as Liquidating Trustee of Millers Inc. v. Commonwealth of Pennsylvania, Board of Property
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** November 23, 1987
- **Citations:** 111 Pa. Commw. 240; 533 A.2d 819; 1987 Pa. Commw. LEXIS 2625
- **Precedential status:** Published
- **Opinion:** Concurrence by Kalish
- **Judges:** Craig, Doyle, Kalish
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6372596

## Opinion text

Concurring Opinion by
Senior Judge Kalish:
I concur.
The fact that the condemnor has a right by statute to take the land beneath the easement does not absolve it of its obligation to pay just compensation for the taking. Each is a separate and distinct interest, the taking of which affects the before and after value. Thus, ownership of the easement and/or its abandonment is an extremely important factor in determining the use value of real estate. Use is a factor to be considered in determining the fair market value of the interest taken. Mazur v. Commonwealth, 390 Pa. 148 , 134 A.2d 669 (1957).
While viewers may pass upon title to land which is the subject of condemnation in order to determine who are entitled to damages, viewers are without power to decide a dispute between owners claiming the same piece of property. Powell Appeal, 385 Pa. 467 , 123 A.2d 650 (1956). That was not the issue here. There is no question that Miller was the title owner of the underlying fee. The question was whether Miller was entitled to damages for a fee simple estate or one subject to an easement. This depends, of course, on whether the easement had been abandoned by the condemnor. It was purely a question of the extent of the damages, and the viewers certainly were capable and competent to decide that question.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6372596. Public record. Not legal advice.