stating that "[j]ust as the trial court may decide mixed questions of law and fact, so may the appellate courts review them"
How later courts described this case
- stating that "[j]ust as the trial court may decide mixed questions of law and fact, so may the appellate courts review them"
- suggesting that a trial court could “decide mixed questions of fact and law”
Written by the judges who cited it.
The opinion
NIX, Justice,
concurring and dissenting.
I agree the Commonwealth must compensate the City of Chester for the taking of the portion of Crozer Park in question here. However, with due deference to the opinion of the majority, its resolution of the case on constitutional grounds is neither necessary nor appropriate. The clear and unambiguous language of Article 1, § 10 of the Pennsylva *403 nia Constitution 1 has no applicability to the taking of public property as is in issue here. 2 Although the result reached is a correct one, the damage wrought by the analysis employed far outshadows that accomplished by the result.
Accordingly, the question of whether or not compensation is due for a taking of property owned or administered by a local government is a question of statutory construction in this jurisdiction. Speers Borough Sch. Dist. v. Commonwealth, 383 Pa. 206 , 117 A.2d 702 (1955). The essence of Speers is that there is no constitutional prohibition against a legislative provision for compensation for the taking of property owned by a political subdivision, if so deemed by an appropriate state. Speers also provides that a statute granting a right to compensation for a taking is to be construed as encompassing the taking of public property as well as private property unless a contrary intention is expressly provided in the statutory provision being examined.
The problem in the instant case is essentially one involving an interpretation of the Eminent Domain Code of 1964, Act of June 22, P.L. 84, Art. § 601, 26 P.S. § 1-601 (Supp. 1980). The Eminent Domain Code does not contain any provision specifically stating compensation shall be paid only to private owners of property. The City of Chester meets *404 all the requirements of status of “condemnee” 3 as required by the Code and must be “justly compensated’ for any loss. 4
Appellant lost a unity of use which had existed between the Finland Drive — Concord Avenue section of Crozer Park and the larger section of the Park. The citizens of Chester, to whom the municipality owes a duty, were deprived of reasonable access to a public park by the demolition of the bridge. The assertion that the wooden railroad bridge remained closed and unavailable for public use was “justified” because of the condemnation is specious reasoning. There was a loss of a facility necessary for the public welfare.
As the majority indicates, if the measure of damages, in such a situation, is fair market value, appellant will not have been justly compensated. While the Eminent Domain Code sets forth various methods for reaching the measure of damages for just compensation, the methods enumerated are not exclusive. The destruction of the unity of use and the city’s obligation to its citizens more than warrants the adoption in this Commonwealth of the “substitute facilities doctrine”, previously applied in numerous Circuit Courts of Appeals. 5
Once the substitute facilities doctrine comes into play, the compensation due a local community for the taking of a public facility should be “the cost of supplying whatever substitute facilities are reasonably necessary to serve its constituents in as adequate a manner as it would had the condemnation not occurred.” City of Fort Worth v. United *405 States, 188 F.2d 217, 222 (5th Cir. 1951); United States v. Arkansas, 164 F.2d 943 (8th Cir. 1947). Just compensation for a political sub-division entitled to an award for a taking must be replacement value in order to give meaning to the reasons for granting any award. For these reasons, replacement cost for the bridge is required as an element of damages.
I agree that the order of the Commonwealth Court should be vacated, but I disagree that there is a need for the taking of further testimony in this matter. I believe the present record clearly supports the order entered by the Common Pleas Court.
. Article 1, § 10 of the Pennsylvania Constitution provides in pertinent part;
... no; shall private property be taken ... without just compensation being first made or secured. [Emphasis added.]
. There is some authority for the view that municipal property held for proprietary purposes may fall within che constitutional ban against the taking of private property without payment of just compensation. See e. g., In re Acquisition of Water System, 372 Pa. 424, 428 , 93 A.2d 437, 439 (1953); Shirk v. Lancaster City, 313 Pa. 158, 163 , 169 A. 557, 559-60 (1933). Experience has shown that utilization of the distinction between “proprietary capacity” and “governmental capacity” has created more problems than it has solved. I believe such an analysis is fictional as well as unnecessary and should not be employed.
. “ ‘Condemnee’ means the owner of a property interest taken, injured or destroyed, but does not include a mortgage, judgment creditor or other lienholder.” 26 P.S. § 1-201.
. “The condemnee shall be entitled to just compensation for the taking, injury or destruction of his property,.... ” 26 P.S. § 1-601.
. See cases cited on pages 17, 18 of the majority opinion, supra. Cf. also Jefferson County v. Tennessee Valley Authority, 146 F.2d 564 , cert. denied 324 U.S. 871 , 65 S.Ct. 1016 , 89 L.Ed. 1425 (1945); Pennsylvania Gas & Water Co. v. Pennsylvania Turnpike Commission, 428 Pa. 74 , 236 A.2d 112 (1967). See generally, Eminent Domain: Cost of Substitute Facilities as Measure of Compensation Paid to State or Municipality for Condemnation of Public Property, 40 A.L.R.3d 143 .