Petition for Writ of Certiorari — Babcock Boulevard Land Co. v. Pennsylvania

“IN RR: PETITION OF RED JACKET COMPANY, -

NC., FOR. THE APPOINTMENT OF VIEWERS TO

5 * || tice Suprome Court, U.S.

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IN RE: PETITION OF BABCOCK BOULEVARD

LAND COMPANY, INC., FOR THE APPOINTMENT

OF VIEWERS TO ASCERTAIN THE DAMAGES,

- ARISING FROM THE CONSTRUCTION OF L. R.

765, SECTION 3A IN ROBINSON TOWN-

ä SHIP, ALLEGHENY COUNTY, s

1 | PENNSYLVANIA !

- APPEAL OF BABCOCK BOULEVARD LAND

Ca ane INC.

ASCERTAIN THE DAMAGES ARISING FROM

—"THE-CONSTRUCTION OF L. R. 765, SECTION — 3

3A IN ROBINSON TOWNSHIP, ALLEGHENY |

COUNTY, PENN SYLVANIA )

.

APPEAL OF RED JACKET COMPANY, INC.

PETITIONS FOR WRIT OF CERTIORARI TO THE

+ \ SUPREME COURT OF PENNSYLVANIA |

JOHN B. NICKLAS, JR.

McCrapby & NICKLAS

Attorneys 1 for Petitioners

Mecrady Nicklas Bldg.

304 Ross St. N Re: : 3

Pgh. 19, Pa.

SMITH BROS. CO. INC., ‘Law PRINTERS, 434-486 BLVD. OF ALLIES, PITTSBURGH . PA.

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eee Las Aaa, eae BRS a inl od he ag SS

| Reasons Relied on for Writ 1 . „„

I. The Deprivation of Appellants’ Access

to Ramp A by the Commonwealth Without Just

Compensation Is Violative of the Fifth and

Fourteenth Amendments 8 the United States

Constitution (•v ˖ ˖ ˖ ˖ ³ ee ee rr

II. Section 8 of the Limited Access High-

way Act of May 29, 1945, P.L. 1108 (36 P. S.

2391), Which Denies Consequential Damages

Where No Property Is Taken, Is Violative of

Due Process. 2 ae —

Conclusion Nas os pk hae sess e be a

INDEX TO APPENDIX 555

Opinion of the Supreme Court en Uh ve e e

Report of Viewers — No. 2 November Seasions;

nnn e <9 30 ene 5

saa = ie ‘Viewers - — . No. 3 November Sessions,

Opinion of the Quarter Sessions Court. races ,

No. 2 November Sessions, 1959 „

No. 3. November Sessions, 1950 F

TABLE OF CITATIONS

} Appel of Key Realty Company, 408 Pa, 98 (u A.

fee INDEX TO PETITIONS |

Petition for Writs. of certiorari ee ee 1

Opinions Below ....... Pre ena 2

J Fp re eee . 2

Questions Presented VVV a

| Constitutional ities and Statutes Involved . 3

ee Statement of Case wane) 2s areas. 5

11

11

RPA eee e eee d. N ae PMR ONS , CH 1 1

5

Table of Citations...

> 1 .

CASES: | ‘PAGE

. Appointment o Viewers to Assess Damages to

Property of Roland A. MeCrady, 399 Pa. 356

n . . 1 19, 20

Breinig v. Allegheny County, 332 Pa. 474 at 480 17

Cincinnati v. Louisville R. R. Co., 223 US. 390 135

Creasy v. Stevens, Secretary of Highways of the’

areata of Went 1 F. Supp.

„ „ „„ „„ „% „„ „„ „„ „„ „%„ „„ „% „% „„ „% „„ „% „% „% „% „% „„ „% „„ „% „„ „% „%„0 „% „„ „„ 6 „ „ 0.4.0. 18

inka v. United States, 169 F. Supp. 491 (CECE

y typhi ae ac 23

Donovan v. Penna. Co., 100 US. 279, 301, 302, (1905) 16

_-Gardner v. Allegheny County, 382 Pa. 88, 116 (114

MN ME os oreo oasis he cs that eens ts

Griggs v. County of 1 369 US. 84 and by

the Supreme Court. of Pennsylvania, 402 Pa. 411 |

= (168 A.2d 123)))))œ:: ++. 13, 17, 22, :

“<> Jensen v. United States, 305 F.2d 444 (Ct, Cl. 1962)°

Johnson v. Airport Authority of the City of Omaha,

173 Neb. 801, 115 N. W. 2d 426. (1962) „ 23

Morey v. Doud, 35 U.S. 457, 44. .

Pa. Coal Co. v Mahon, 260 US. s . 11. 28, 27

aie Park H. Martin, Successor to Joseph Lowler as Sec.

of Highway of the Commonwealth of Pennsyl-

„ O 200 8. 2 5:

F p eA SRS 3 . . . II, 12, 13, 14

Rich Rill v. Bashore, 294 Pa. s. 168

Sauer v. New York, 206 U.S. 393 e oS os

Soldiers and Sailors Metnorial Bridge, 308, Pa. 487 :

Po PR 8 rere 3

Seat =, Gimbel Bros. 285 Pa. 102 1 4

United States v. 48.10 Acres of Land, 144 F. Supp.

258 (S.D. N.Y. 1966): cidereserrivess tae El

*

ne Citations. : a

: CASES 1

United States v. 1040.30 Acres of Land, 144 F. Supp.

200 (WD. La. 1956)... epic ety . . 23

United States v. Causby, 328 U.S. 258 9 76. 18

White’s s Appeal, 287 Pa. 259 .......... sii dh aah aaa 11, 19

Williams v. Lee Optical eee 348 US. 483

RS ere „ ace

| mo 2 Srarurts 1 4 —.

Act of May 21. 1937, PI. „ 25

e een 1945, „

1108 (36 P. S. 2391) „„ 15, 21, 24, 29

Section ....:. E 2, 4, 15,12, 24; 25,28

Pennsylvania. Highway Act of June, 1945, P.L. 1242 5

Sec, 528 (36 P.S. 670.528) 20, 28

coke OA, 2 5 Consmrrurion

United States Constitution

Fifth Amendment 2.3, 6,7, 12, 18, 22, 20

’ Fourteenth Amendment . . . 2, 3, 6, 7, 12, 17, 22, 29,

Article I, Sec. 10, Clause 3, 15

Pennsylvania Constitution ee, TR

Article 1, Section 1ĩ0 . 3, 11, 12, 13, 17

5 Article 16, Section 8 8 . 4, 12, 17, 18

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ities

| Supreme Court of the United States.

é i 2 4 * *

IN RE: PETITION OF BABCOCK BOULEVARD

LAND COMPANY, INC., FOR THE APPOINTMENT |

OF VIEWERS TO ASCERTAIN THE DAMAGES

ARISING FROM THE CONSTRUCTION OF L. R.

765, SECTION 3A IN ROBINSON TOWN-

SHIP, ee eal PENNSYL- |

—

APPEAL OF BABCOCK BOULEVARD LAND .

COMPANY, INC.

| MG, wx: ee |

IN RE: PETITION OF RED JACKET COMPANY,

INC., FOR THE APPOINTMENT OF VIEWERS TO

ASCERTAIN THE DAMAGES ARISING FROM

IHE CONSTRUCTION OF L. R. 765, SECTION |

3A IN ROBINSON TOWNSHIP, ALLEGHENY

COUNTY, PENN SYLVANIA

“APPEAL OF RED JACKET COMPANY, INC.

PETITIONS FOR WRIT OF CERTIORARI ‘TO THE |

SUPREME COURT OF PENNSYLVANIA

PETITION FOR WRIT OF CERTIORARI -

Petitioners Babcock Boulevard Land Company, Inc.,

‘and Red Jacket Company; Inc., by their counsel, John

B. Nicklas, Jr., of McCrady & Nicklas, pray a writ

of certiorari issue to review the orders of the §

Court of Pennsylvania, affirming the orders of the Court

of Quarter Sessions — coy: Pennsylvania.

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| “OPINIONS BELOW

The Report of the Board of Viewers was filed on

April 5, 1960. The opinion of the Court of Quarter Ses-

sions of. Allegheny. County, Pennsylvania, was filed on

September, 25, 1964. The Supreme Court of Pennsyl-

vania filed Per Curiam opinion on May 25, 1965. These

opinions are appended hereto in accordance with Rule 23

e 1 (a) (1) of. Jour Honorable Court.

JURISDICTION”

The orders of the * Court of Pennsylvania

were entered on May 25, 1965.

Jurisdiction of the Court is invoked under 28

: USCA. 1257 420 and 28 U.S. C. A. 1257 (.

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ii QUESTIONS PRESENTED

I. Is the deprivation of a Fe eee s right

ar access to his land (either total or partial) a property

right within the meaning of the Fifth and the Fourteentn

_ Amendments to the United States Constitution, and

therefore compensable if interfered wn E. the Com-

monwealth of Pennsylvania? 4500

f Negatived by the court below.

2 16 Section 8 or the Limited Access Highway

Act of May 29, 1945, P. L. 1108 (36 P.S. 2391), which

i _ denies compensation to a property owner unless some

of his property is actually taken, a violation of due

process, and therefore unconstitutional and void ?:

p che, be Se the court below. |

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3 ne pe ae

88 — nenen

CONSTITUTIONAL PROVISIONS / AND STATUTES

O

_ INVOLVED

Amendment XIV to the Constitution of the United

States:

“Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are-citizens of the United States and of the

5 State wherein they reside. No state shall make or

5 enforce any law which shall abridge. the privileges

or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty,

or property, without due Process of law; nor deny

to any person within its jurisdiction the equal pro-

tection of the laws.” 28 U.S.C. Const. Amend. 14.

states:

s

uw

Amendment V to the Constitution of “sg United

. nor shall private property be taken for

. wie, without 7 8 compensation.“ 28 1 ae

Const. Amend. 5.

Law, or Law impairing the Obligation of Contracts, ?

or grant any Title of Nobility.” 28 U.S.C. Const..

Art. 1, Sec. 10.

_ Article 1, §10 of the Pennsylvania Constitution:

“No person shall, for any indictable offense, be

proceeded against criminally by information, except

in cases arising in the land or naval forces, or in the

militia, when in actual service, in time of war or

public danger, or by leavé of the court for oppres-

RSE RRR OR, N

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or limb; nor shall private property be taken or ap-

plied to public use, without authority of law and

‘without just compensation being first made or se-

cured.” Penna. Purdons Art. 1, Sec. 10.

Article 16, §8 of the Pennsylvania Constitution:

“Municipal and other corporations and indi-

viduals invested with the privilege of taking private

for public use shall make just a-

tion for property taken, injured or destroyed by the

_ construction or enlargement of their works, high-

ways or improvements, which compensation shall

be paid or secured before such taking, injury or

destruction.” Penna. Purdons Art. 16, Sec. 8.

Section 8 of the Limited Access Highway Act of

May 29, 1945, P.L. 1108 (36 P.S. 2391.8) :

“* © © The owner or owners of private property

affected by the construction or designation of a

limited access highway or local service highway or

by a change of the width or lines of any intersecting

streets or roads shall be entitled only to damages

arising from an actual taking of property. The

Commonwealth shall not be liable for consequential

damages where no property is taken. For the

purpose of constructing limited access highways,

local service highways, or intersections, streets or

roads, the Secretary of Highways is hereby em-

speared ce Sane ee

Same e

“f

Statement of the Case.

STATEMENT OF THE CASE

Certiorari is sought in these cases to review the

Orders of the Supreme Court of Pennsylvania affirming

the Court of Quarter Sessions of Allegheny County,

Pennsylvania, which denied appellant property owners

damages for deprivation of right of access to Ramp A

and the Parkway West (a limited access road) by the

Department of Highways of the Commonwealth. of Penn-

sylvania which erected a permanent barricade across

the same in front of petitioners’ property, although the

property owners had been using it for more than five

(5) years. The Board of Viewers, the Quarter Sessions

Court and the Pennsylvania Supreme Court all held that

under Art. I, Sec. 10 of the Pennsylvania Constitution

and the Limited Access Highway Act of May 29, 1945,

P.. 1108 (36 P. S. 2391) no damages could be awarded

the property owners because no physical land or dirt

nad been taken and further, that the barricading off of

the Ramp, thereby depriving the property owners of

access to the Parkway West, was non-compensable under

the police powers of the State Highway Department.

At Nos. 2 and 3 November Sessions, 1959, Road

Docket, Court of Quarter Sessions of the Peace of Alle-

_gheny County, Babcock Boulevard Land Co., Inc.

‘ inafter called: “Babcock”) . and Red Jacket Co., Ine.

(hereinafter called Red Jacket“), respectively, filed

Petitions for Viewers to assess damages against the

Commonwealth of Pennsylvania (Department of High-

ways) VVV

West on October 9, 1957.

Viewers were appointed, heard testimony, pe dis- 3

allowed appellants any damages, — that the action

8

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Statement i the Case.

of the Commonwealth, did not comatibate a condemna- ä

tion and taking of any part of claimants property; that

8 said action by the State Highway Department was in

* accordance with the provisions of Section 4 of the Lim-

ited Access Highway Act of 1945, P.L. 1108 (36 P. S.

2391) ; that claimants’ right to recover must rest upon }

some constitutional or statutory provision and, in. the

absence of such, there can be no damages en the

Commonwealth. (R. pp. 71a-73a, 94a, 7a)

Exceptions to the Viewers Report were timely filed 8

in the Court of Quarter Sessions of Allegheny County,

Pennsylvania, and appellants also filed timely appeals

to the Court of Common Pleas of Allegheny County at

Nos. 1445 and 1446 July Term, 1960. The Commonwealth

filed motions’ to quash those appeals to the Common

Pleas Court on the theory that appellants had no right

to a trial by jury for the ascertainment of damages since

as a matter of law there was no actual physical taking

| of ground and consequently no damages could be

awarded. After oral orgument and written briefs, the

Common Pleas Court en banc (Aldisert and Smart, JJ.)

denied the motions to quash, but ordered said appeals

not be listed for trail by jury until the questions of law

raised by the exceptions in Quarter Sessions Court

should be finally adjudicated, without prejudice to the

Commonwealth to renew its motions to quash following

such final adjudication. Consequently, the appeals in the

Common ‘Pleas Court are being held in abeyance.

The question of whether deprivation of Petitioners a

right of access by the Commonwealth was a compensable

property right within the meaning of the Fifth Amen-

inent and Fourteenth Amendment to the United mates

\

Statement of the —

Constttaticia: ee poemtated! heim is that written n briefs ins.

and oral argument on the exceptions filed to the Board

of Viewers Report before Quarter Sessions Court. The

Quarter Sessions Court dismissed the exceptions, and

in its opinion, stated that while the Fifth Amendment is

applicable to the states through the Fourteenth, these

were inapplicable with regard to the issue of access

rights when the Commonwealth i is the condemnor. Rec-

ord p. 113a, p. 121).

An Appeal was taken to the Pennsylvania Supreme

Court where questions of the applicability of the Fifth -

and Fourteenth Amendment were again submitted in

both the written brief and oral arguments before the

Court. A Per Curiam Opinion was filed affirming the

Quarter Sessions Court Orders on May 25, 1965.

The facts involved in the instant petitions are aa its

| follows: : ee

(a) Petitioners are the owners of respective com: |

mercial (racts ©

County, Pennsylvania, abutting on a ‘public hightwag.

known as Parkway West. Babcock Boulevard Land Com-

pany, Inc. acquired title to its property by deed from

George Peat et ux. dated December 19, 1952, recorded

in Deed Book Vol. 3255, page 27; Red Jacket Company,

Inc. acquired title to its adjoining tract by deed from ,

Babcock Boulevard Land Company, Inc. dated N

30, 1954, recorded in Deed Book Vol. 3591, page 614.

Babcock Company’s commercial tract is unimproved; the

Red Jacket tract has erected thereon a cOmmercial build-

ing in which Red Jacket conducts its business.

—— | RRs ———

wre west

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Ss Hate 8 ES th —————— —— — „ n

Statement of the Case.

Bi (b) on June 2, 1950, the Commonwealth of Penn-

sylvania located and constructed in Allegheny County a.

- limited access highway designated as L. R. 765, Section

8A, popularly known as the Penn-Lincoln Parkway West.

At what was to be known as the Rosslyn Farms Inter-

. Change, located at the boundary line between Rosslyn

Farms Borough and Rosslyn Township, Ramp A was

planned and actually constructed, At the time of the con

demnation of June 2, 1950, all of the property now owned

by Babcock and Red Jacket was owned by an individual

named George Peat.

(6) On June 23, 1952, Peat, sredlaceanor in

title to the commercial. land owned by petitioners,

made a settlement with the Commonwealth of Pennsyl-

vania for the approximately. 8 acres of his land appro-

priated by the Commonwealth for the sum of $8,000, and

executed Form 474-B of the Commonwealth titled “Deed

of Release and Quitclaim, Limited Access Highway,“

whereby he released “the Commonwealth or any agency

or political subdivision thereof for or on account of any

taking, injury or destruction of property or by reason of

the improvement of said road or by reason of the

. deprivation of the right of access, egress and ingress to

and from the section of highway, or through or bv rea-

son of the subsequent maintenance thereof according

to the standards of the Department of Highways. A plan

showing the proposed improvement is hereto attached

eee: Oe

release provides for access to Ramp A to the Penn-

coln Highway. ‘The following legend also appears on the

back of the plan.

Statement of the Case.

3 “Luurrep Access Hichway

This print is made from Sheet No: 12, of right-of-

Way plan for Route No, 765, Section No. 3A, Alle-

gheny County, approved by the Governor on June 2,

1950, which I have examined and had explained to

me this 23rd day of June, 1952, and is to be attached 3

do the release herewith executed. ae

S/ Philip E Meyer Witness

pee 5 George Peat Seal“

(d) Peat subsequently conveyed all of his land to

- Babcock, which in turn later conveyed: a portion thereof

to Red Jacket, which erected a factory building thereon

and used Ramp A for access to the Parkway until Octo-

ber 9, 1957, when a plan revision was signed by the

_ Governor of the Commonwealth and a barricade was

erected across Ramp A, thereby depriving Red Jacket, as

well as Babcock, from access thereto.

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Statement of the Case.

5 16973, ä eee |

_ of the Commonwealth, and George M. Leader, Governor

of the Commonwealth, seeking injunctive relief to force

said defendants as officials of the Commonwealth to re-

move the barricade of Ramp A. Hearing thereon was

held September 25, 1958, before Staley, McIlvaine and

Marsh, JJ., at the conclusion of w it was agreed by

counsel for Babcock Company and for the ‘defendants —

that decision should be delayed by the court until after

the United States Supreme Court had acted in the case

a of Park H. Martin, Successor to Joseph Lawler as Sec-

*

retary of Highways of the Commonwealth of Pennsyl-

vania et al. v. Creasy et al. 360 U.S. 219. In the Creasy

ceuse the United States Supreme Coust held that it could

not take jurisdiction because the property owner had:

not first exhausted his remedies in the Pennsylvania

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_ Reasons Relied . n Writ.

REASONS RELIED ON FOR ALLOWANCE

of ‘WRIT

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9

The Deprivation of Petitioners’ Access to mp A A

by the Commonwealth Without Just Compensation Is

Violative of the Fifth and Fourteenth Amendments 5

a } the United States Constitution.

It seems crystal-clear (and the Opinion of the —

court agrees) that there has been a radical change in

Pennsylvania decisions from the early decisions which

denied a property owner damages unless land or dirt was

actually taken, under the wording of Article I, Section 10

_ of the Pennsylvania Constitution, and that later deci-

sions have recognized conséquential damages and in- ~

- corporeal ‘rights as compensable. Soldiers’ and Sailors’.

Memorial Bridge, 308 Pa. 487 (162 Atl. 309, 310); Ap-

pointment of Viewers to Assess Damages to Property of

Roland A. McCrady, 399 Pa. 586 (160 A. 2d 715).

As Mr. Justice Holmes said in his opinion in Penn-

_sylwania Coal Co. v. Mahon, 260 U. S. 393 (in which he

declared ‘Kohler Act of May 27, 1921, P.L. 1198 uncon-

stitutional ))

While such W giletlo may not physically

take the property, they do so regulate its use as to i

deprive the owner of @ substantial right therein

without compensation. We are in danger of for-

getting that a strong public desire to improve the

‘public condition is not enough to warrant achieving

the desire by a shorter cut than the constitutional

way Of paying for the change’: White's Appeal, 287

Pa. 259, 266, 134 A. 400“ (emphasis supplied).

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r ˙ TT m ²˙Ü˙¹ñʃr ͤ!ßWU a as

12 :

e for ee of Writ

“a Martha «Greeny, 360 U.S. 219, Creasy obtained

an injunction against the Superintendent of Highways 3

ot the Commonwealth of Pennsylvania in the United

States District Court for the Western et of Penn-.

sylvania (Marsh, J.) to enjoin the Dep t of High-

ways from denying him access to the Parkway West.

The United States Third Circuit Court affirmed, but the

United States Supreme Court reversed only because it

held that Creasy should first exhaust his remedy in the

Pennsylvania courts. The court’s opinion, however,

makes it clear that a property owner should not be

deprived of his right of access without compensation be-

cause of the difference in the language between Article

I, Section 10 and Article XVI, Section 8 of the Pennsyl-

vania Constitution, nor under the provisions of Section

8 of the Limited Access Highways Act of 1945 (as dis-

| cussed under Point I of this Brief). The decision indi-

~ cates that access is a compensable right, the confiscation

of which, by the Commonwealth, without compensation

is violative of the Fifth and the Fourteenth Amendments

of the Federal Constitution. The majority nie. was

delivered by Justice Stewart: 12

roi “There is no reason to suppose that the Com-

- monwealth of Pennsylvania will not accord full

: constitutional scope to the statutory phrase actual

taking of property. If, after all is said and done in

the Pennsylvania courts, any of the plaintiffs be-

eve that the Commonwealth has deprived them of

.. their property without due process of law, this

: Court will be here”. (emphasis supplied). .

Wos respectfully submit that the Creasy. opinion

ee ee Nee sy, for

here petitioners find themselves in a situation anticipated

5 5

Reasons Relied on for A of Writ.

by the United States Supreme Court with respect to the

Parkway West. :

eee Justice Douglas of the United States Supreme

Court believed that the delay and expense of first should

be avoided ‘and that the United States District Court

and the Circuit Court of | were correct in assum-

‘ing jurisdiction. Mr. J Douglas stated 7

_“* * * We have at bottom in this case a question

whether access to a highway is a property right

which is compensable under the Fifth and Four-

teenth Amendments. If it is compensable, as the

District Court ruled, see 160 F. Supp. 404, 410-412,

this is the most appropriate time to make the an- |

nouncement. Particularly is this so when appellees’

in this case sought a declaration by the state court

of their rights under the statute and were told that

‘their constitutional rights, whatever: Chey ay be, 3

unn; eet „

* 828 ** *

e ast ee e aa law but a

concept imbedded in the Bill of Rights. It is in no

way entangled with local law. The Supremacy .-

; inne tig cs aaa |

bow to that concept of ‘property’ ”. ö

The opinion of the court below dismisses the Fifth

and Fourteenth Amendments of the United States Con-

_ stitution and the decisions of the Supreme Court of the

United States — United States v. Causby, 328 U.S. 256;

Griggs v. Allegheny County, 309 U.S. 84, and Martin v.

Orehay, supra — holding that the wording of Article I.

See ee 0

lines

Reasons Relied on for dune of Writ,

sions.

—

The consi court opinion also erroneously assumes

that there must be a total deprivation of an existing

*

val over the Federal Constitution and the * 8 5

right of access in order for the property owner to have a

f compensable action in damages (R. 129a, 130a).

However, it is clear that Martin v. Creasy, supra,

_ rejects the proposition that loss of total access is a pre-

requisite before a right of action accryes in the property

owner. In Creasy, Mr. Justice Douglas stated:

} “Whether or not the landowners will be ieft

landlocked or given access to substitute service

roads goes only to the question of the amount of

property ‘taken’, if any. It has nothing to do with

the question of the landowner’s property right in

access to a highway re his land” ee

supplied). 8

The court below further states (R. 127a) 1

„Common sense would indicated that there was

no intent that ‘the plan should confer on George

Peat a contract right. the Commonwealth he

required to surrender its police power over that por-

tion of the Parkway to his discretion.”

We concede and there can be no doubt that the Com-

monwealth should and did retain its right to revise the

plan whenever, in the exercise of its power of eminent

domain under the Limited Access Highway Act, it cared

to do so; but this should not deprive appellants of com-

| pensation. from the Commonwealth for the appropria-

tion of appellants’ access rights to Ramp A.

—

Ann “

As stated in: — In Cincinnati v. Louisville RR. Om,

223 U.S. 390:

“This clause [Art. I, Sec. 10, Clause 1] 1 . 0

limitation upon the power of eminent domain. The

obligation of a contract is not impaired when it is

appropriated to a public use and compensation made

therefor. Such an exertion of power neither chal-

lenges its validity nor impairs its obligation. Both

are recognized, for it is appropriated as an existing

_ enforceable contract. It is a taking, not an impair-

ment of its obligation. If compensation be math,

no constitutional right i is violated.”

The consideration for the execution and delivery of

_ the Deed and Release by Peat was the payment by the

Commonwealth to him of $8,000 and the grant of access

rights to Ramp A as graphically shown on the plan at-

tached thereto; thus a property right in Peat and his

successors in title was established.

‘ Creasy (160 F. Supp. 404 US. Dist. Ot. western

Dist. of Pa.) Judge Marsh said:

he Pennsylvania Limited Access Highway

Act as applied to them (the plaintiffs) is violative

of the Fourteenth Amendment of the United States

Constitution in that it deprives them of their prop-

erty without due process of law, and denies them

the equal protection of the laws. See Del. L. & W.

R. k. v. Morristown, 276 US. 182 (1928), at 193, for

a discussion of compensation as an element of due

process; see also 16A C.J.S. Con. Law Si ciao

646.” ‘

It seems seis that the Legislature cannot deprive

2 property owner of his . right to W

1

Reasons Relied on for A o.nᷣαe of Writ.

simply by the passage of an act which attempts to elimi-

nate or restrict that right. The requirement of due

process is not satisfied merely by legislative declaration

that no remedy is available (es in the Limited Access

Highways Act).

In Rich Rill v. Bashore, 334 Pa. 449, at 478, the

Court said:

Although the legislature may at its pleasure

provide new remedies or change old ones, the power

is nevertheless subject to the condition that it can-

not remove * * * certain fundamental rights which

have been always recognized and observed in —

cial procedures.”

In short, the Assembly may not define a 8 f

taking as lawful and thus by definition defeat the re-

quirements of the Fourteenth Amendment.

in Donovan v. Penna. Co., 199 U.S. 279, 301, 302

(1905) .the Supreme Court of the United States, in dis-

cussing the right of abutting property owners to gc ess

to a street or road, said:

„he right may be regarded in the nature

of an incorporeal hereditament.’ * * * The general

' doctrine is correctly stated in Dillon on Municipal

Corporations: ‘For example, an abutting owner's

right of access to and from the street, subject only

to ligitimate public regulation, is as much his prop-

erty as his right to the soil within its boundary

lines.. When he is deprived of such right of access,

or of any other easement connected with the use

and enjoyment of his property, other than by the

exercise of legitimate public regulation, he is de- .

prived of his property” |

. 11

Resisone Relied on for abu of Writ. 2

In Breinig v. Allegheny County, 332 Pa. 474, at 480,

the Pennsylvania Supreme Court said: :

Where land is taken or purchased for high-

ways, the abutting owner retains, as an incident to |

ownership of the remainder of his land, the right of

access, or of ingress and egress. This-right cannot

be taken from him unless compensation is 585

therefor under the law. It is a property right,

‘tected by the Constitution” (Emphasis 0 5

To the same effect Stuart v. Gimbel. Brothers, 285

Pia. 102, Griggs v. County of W 360 U.S. 84 (402

Pa. 411) 168 At. 2d 123).

The court below concedes that an “abutting property

owner's right of access is a property right or an ease-

ment appurtenant but it nevertheless concludes that

- Babcock and Red Jacket have not been injured because

no dirt or land was actually taken by the Commonwealth

(Department of Highways) on October 9, 1957, when it

barricaded off . from access to Ramp A. The

court says:

The basic issue before the court is whether or

not the ‘easement’ of access is a property right for

the deprivation of which the Commonwealth is li-

able in damages under Article I, Section 10 of its

Constitution” (Opinion, p. 113a).

The opinion then compares the language of Article 1

Section 10, which it admits is substantially identical to

the Fifth Amendment to the Federal Constitution, to

Article XVI, Section 8, of the Pennsylvania Constitution.

The court below then concludes that Article I,. Sec-

tion 10, ä to both the Commonwealth — those to

ne ——

10

Reasons Relied on for Allowance of Writ.

whom it delegates this power, while Article XVI, Sec-

tion 8, applies only to ‘municipal and other en,

and individuals’ ”’ (citing cases). :

Thus in the absence of any statutory assump-

tion of liability, the Commonwealth as condemnor

is required to make compensation for property

taken, but apparently is not under the same compul-

ion 115a).

The lower court then reaches a startling 1 in-

consistent conclusion (123a):

“While we concur both in the holding that there

need no longer be a physical appropriation of land

to constitute a taking of property, and that access

is a property right by virtue of Article XVI, Section

8 and various legislative enactments applicable to

municipal and other corporations and individuals',

we cannot agree that this amounts to a declaration

that access is a compensable property right where

the condemnor is the A en

supplied).

It is petitioners’ e 0 that the distinction thus

drawn between these two sections of the Pennsylvania

Constitution is unsound, fallacious and violative of peti-

tioners’ constitutional rights. ä

The Commonwealth contends that the act of the |

Secretary o Highways and the Governor of Pennsyl-

vania on ber p, 1957, in barricading of petitioners’

property from Ramp A, was a lawful exercise of police

power and does not constitute a taking of property. The

5 Commonwealth argues, further, that petitioners’ consti-

Reasons Relied on for Allowance of Writ.

tutional rights are not violated because n have

other means of access to Bell Road. We respectfully

submit that, although petitioners may have access by an

unsatisfactory and circuitous route to their properties

from the back streets of Carnegie, nevertheless they

have suffered the loss of a property right by reason of

the Department of Highways barricading them off from

the Parkway West. Compensation for loss of access to

a main artery by an abutting property. owner, as in the

instant cases, is not dependent upon their having no

other means of access.

In Appointment of Viewers to Assess Dae to

Property of Roland A. McCrady, 399 Pa. 586, 160 A. 2d

715, the Governor and Secretary of Highways of the

Commonwealth of Pennsylvania condemned a strip of

ground along both sides of the triangular plot of ground

owned by McCrady at the intersection of U.S. Route 20

and Pa. Highway Route 5, in Springfield Township, Erie

County, Pennsylvania. A curb ranging in height from

6 inches to 12 inches on the outside of the triangular

plot was erected, thereby creating an island, which de-

prived the owner of access to his gasoline station and

restaurant erected on said piece of ground. He

forced to move both buildings back in order to make

them usable. The Supreme Court affirmed the verdict

of $27,500. in favor of the property owner, which in-

cluded consequential damages for the injury, necessi-

tating the moving of the gas station and restaurant.

Mr. Justice B. R. Jones, speaking for the Pa. Supreme

Court (1960), quoted White’s Appeal, 287 Ea. 259, as

- follows:

“Police power should not * confused with that

of eminent domain. Police power controls the use

20 : oe |

Reasons Relied on for Alowance.of Writ.

of property by the owner for the public good, its use

otherwise being harmful, while eminent domain * * *

takes property for public use. Under eminent do-

main, compensation is given for property taken, in-

jured or destroyed, while under the police power,

no payment is made for diminution of use, even

though it amounts to an actual taking or destruc-

tion of property.”

In the McCrady case, the Commonwealth further

relied on Section 420 of the Highway Law of 1945, P.L.

1242, Article IV (36 P. S. 670-420), which empowers

the Secretary of Highways to make reasonable rules and

regulations governing the use of all State highways, and,

buy the construction of curbs, divisor strips, painted lines

or signs, etc., to control the direction of the flow of

- traffic thereon. In other words, the Commonwealth con-

tended that it could not be liable in damages since it

erected the curbing around the McCrady property under

its police powers. This argument was also rejected by

the Supreme Court, viz.” |

“What the Commonwealth a0 to do is

clear and evident: under the guise of the police

power it seeks to accomplish indirectly that which it

cannot -accomplish directly. The Commonwealth

attempt to justify the curbing as an exercise of its

police power and the taking as an exercise of its

power of eminent domain in an attempt to escape

liability for the damages which appellee so obviously

suffered, cannot be condoned.” (emphasis supplied).

“We are in danger of forgetting that a strong

public desire to improve the public condition is not

enough to warrant achieving the desire by a shorter

*

Reasons Reliod on for aum of Writ

cut than the constitutional way of paying for the

change.

eee, „Absolute and unlimited police power is one of

the twin pillars on which Communism and every

totalitarian regime and every dictatorship is based,

maintained and kept in power. It is a doctrine and

a power which is repungant to our Birthright of

Liberty, our Constitution, our traditions and dur

American Way of Life.” (Key . Co. Appeal,

408 Pa. 28

i

Section 8 of the Limited Access Highway Act of

May 29, 1945, P. L. 1108 (36 P.S. 2391.8) Which Denies

Consequential Damages Where No pect Is Taken,

Is Violative of Due Process.

A. Section 8 of the Limited Access Highway Law

of 1945 reads as follows: ö

_ “* * * The owner or owners of private 8 af-

fected by the construction or designation of a

limited access highway shall be entitled only to dam-

ages arising from an actual taking of property. The

Commonwealth shall not be liable for — 3

damages where no property is taken. .

The Commonwealth’s position is that, by virtue of

the Limited Access Highway Law. of 1945, it is only

liable where land or dirt is actually taken. On the other

hand, it is appellants’ contention that the aforesaid lan-

guage in Section 8 of the Limited Access Highway Law

uses the word “property” as distinguished from the use

of the word “land”. “Property” is a general term and

22

Reasons Relied on for Allowance of Writ.

would include incorporeal hereditaments, easements, and

any and all property rights; hence, to construe the word

property as synonymous with “land” is erroneous.

Had the Legislature intended this narrow construc-

tion, it would have used the terminology “land” or real

age property”. If, on the other hand, the Legislature meant

to identify or equate the term “property” with “land”,

then its clear intention was to deprive appellants or any

other citizen of compensation for the loss of incorporeal

property rights of egress and ingress to or across a

. limited access highway, contrary to the Fifth and Four-

teenth Amendments of the Federal Constitution, in that

it would deprive citizens of their Property without due

process of law.

The Pennsylvania Court has recognized that a tak-

ing is compensable under eminent domain, without

necessarily including the physical appropriation of land:

Gardner v. Allegheny County, 382 Pa. 88, 116 (114 A. 2d

491, 1955). In the Gardner case, airplanes flew below the

air space devoted to the general public and the Pennsyl-

vania Court held that “the use of any part of an owner’s

property is a taking of it.” In the concurring opinion -

of Mr. Justice Stearne, the case of U. S. v. Causby, 328

U. S. 256, 66 S. Ct. 1062, 90 L. Ed. 1206, Toe

approval as follows:

When airplanes habitually fly so low as to

dangerously interfere with the use and enjoyment of

property adjacent to or adjoining air fields, whether

authorized or not, it constitutes a-taking of Prop-

erty for which compensation may be allow

Thus in Griggs v. County of Allegheny; 369 U. 8.

this was — with a statute purporting. to 1 the

— Ü Auz———

_ Reasons Relied on for Allowance of Writ.

glide paths into airports in the public domain, and also

with an interference with a landowner’s use and enjoy-

ment of his property caused by constant low flights

over his land. In his opinion in Griggs, Mr. Justice Doug-

las recognized the existence of this statutory provision,

but summarily dismissed it by quoting from Causby that

the use of land presupposes the use of some of the air-

space akove it. 3 —

— — The holding in Griggs is clearly that a landowner's

= constitutional right to just compensation for taking of

his property cannot be avoided by a Congressional dec-

laration as to the limits of navigable airspace.

Accordingly, the Griggs case settles once and for all

the proposition that landowners must be compensated

for easements taken over their property. The measure

of damages is the depreciation in value of the property

as a result of the taking of such air easements. Johnson

v. Airport Authority of the City of Omaha, 173 Neb. 801, :

115 N. W. 2d 426 (1962) ; Jensen v. United States, 305 F.

2d 444 (Ct. Cl: 1962) ; Dick v. United States, 169 F. Supp.

491 (Ct. Cl. 1959); United States v. 1040.80 Acres of

_ Land, 144 F. Supp. 299 (W. D. La. 1956) ; United States

v. 48.10 Acres of Land, 144 F. Supp. (S.D.N.Y. 1956). 0

That a state court may deſine property rights and

that the Supreme Court ot the United States will not

question such definition, Sauer v. New York, 206 U.S. 536

(1907) has obviously been strictly limited by such sub-

sequent decisions as Pennsylvania Coal Company v.

Mahon, 260 U.S. 393. That case is one of the milestones

in the development of the protection afforded by the fed-

eral courts to private persons against the invasion of

their rights by state legislatures under the guise of the

Reasons Relied on for Allowance of Writ.

police power. In that case, the United States Supreme

Court held that the State of Pennsylvania could not con-

stitutionally under the aegis of the police power deprive

the owners of unmined coal of their right to damage the

surface of the land by removing the coal. Justice Holmes

said, at page 415: “The general rule at least is, that

while property may be regulated to a certain extent, if

regulation goes too far it will be recognized as a taking.

B. Section 8 of the Statute here ä pro-

vides, inter alia, as follows: =

. “For the purpose of constructing limited access

highways, local service highways, or intersection

| streets or roads, the Secretary of Highways is here-

by empowered to take property and pay ne.

therefor as herein provided.

The Limited Access Highways Act of 1945 denies to ap-

pellants equal protection of the laws. The statute ex-

pressly provides a procedure by which the Secretary of

Highways may purchase property for constructing

limited access highways; it is silent concerning his au-

‘thority to purchase property ‘upon conversion of an

existing road to a lmited access highway. It would ap-

pear that the Legislature by this significant omission

has placed a large class of land owners, n r

lants, beyond the pale.

Appellants believe that this We creates a

completely arbitrary discrimination between owners of

land abutting newly, constructed highways and those

abutting existing highways. This statute reveals no ex-

press procedure by which a land owner, upon depriva-

tion of access alone, may bring a claim before a Board of

—

same section 8 of the Limited Access Highway Act: “The

Commonwealth shall not be liable for consequential dam-

ages where no property is taken”. There is no reason-

able distinction between property owners who reside

along a non-access highway entitled The Pennsylvania

Turnpike and the property only a few miles distant along

a highway known as the Greater Pittsburgh Airport .

Parkway. ras : !

There is a third and, appellants believe, a most ox:

treme discrimination, practically unparalleled in the law,

in Section 8 of the Limited Access Highways Act.

“The Commonwealth shall not be liable for con-

sequential damages where no property is taken; :

Provided, however, that the Secretary of Highways.

‘ Reasons Relied on for Allowance of Writ.

‘shall have authority to enter into agreement for the

sharing of the cost of property damages with the

Officials of any political subdivision of the Common-

wealth, which assumes such peine by proper

resolution or ordinance.”

That section “authorizes the Secretary of Highways to

pay damages for the loss of access in some cases but

not in others. If municipal authorities decide that they

have a moral obligation to pay for the loss of access, or a

political obligation, or a personal favor to pay, they may

make this municipality liable for payment of said dam-

ages, ahd the Secretary of Highways may decide to con-

tribute, funds of the Commonwealth to such payment.

What fs or is not a compensable property right then will

be determined i in each instance by the discretion of local

political authorities. Access may thus be a compensable

property right in one landowner and not in his neighbor.

Such a flagrant statutory authorization of discrimina-

tion seems unique in the history: of the law of eminent

domain. It is a reasonable interpretation of the statute

to predict that local policy will | favor friends and punish

enemies with complete freedom by resolving to pay or

not to pay for the taking of access. —

The fortunate owners of abutting property who

would be compensated for their loss of access would be

those with sufficient political or other influence upon

local governing bodies to prevail upon them to pass the

required proper resolution or ordinance”. No chopping

of logic can justify this wholesale delegation to any per-

son or,agency. Furthermore, the statute is silent regard-

ing what proportion of damages the Secretary may

decide to pay in the instances where contribution is

*

— —— ——

r

Reasons Ried on for Allowance of Writ.

made. Here again the political status of individuals

affected and other factors * beyond the control

of the law may govern.

It might well be argued that when the 8

conferred this privilege upon the Secretary of Highways

it recognized, in a sort of left-handed way, that such

right of access is a compensable property right; other-

wise why permit such payment, even ona discriminatory

basis? a

This indefensible discrimination between owners it-

self would be sufficient to refute appellee’s argument

that the police power will support the statute under at-

tack. The police power does not justify arbitrary dis-

crimination anymore than it justifies deprivation of

property, as set forth earlier. Pennsylvania Coal Com-

pany v. Mahon, supra. 260 U.S. 393 ( Holmes)

_ This Court should ‘not interfere with a legislative

classification which is based upon any reasonable differ-

ence: Williamson v. Lee Optical of Oklahoma, 348 U. S.

483 (1955) ; ; but as stated in Morey v. Doud, 354 U. S.

457, 464: ,

“Discriminations of an unusual character

especially suggest careful consideration to deter-

mine whether they are obnoxious to the constitu-

tional provision.’ Louisville Gas & Electric Co. v.

Coleman, 277 U. S. 32, 37-38, 48 S. Ct. 423, 425, 72 L.

Ed. 770; Hartford Steam Boiler Inspection & Insur-

ance Co. v. Harrison, 301 U. S. 459, 462, 57 S: Ct. 838;

840, 81 L. Ed. 1223 * * *, A statutory discrimination

must be based on differences that are reasonably

related to the purposes of the Act in which it is

28

Reasons Relied on for Allowance of Writ.

found. Smith v. Cahoon, 283 U. S. 553, 51 S. Ct. 582,

75 L. Ed. 1264.”

Again, comparing the Limited Access Highway Act

with the Pennsylvania Highway Act of June 1, 1945, P.

L. 1242, § 523 (36 P. S. 670-523), the latter statute as-

sures the affected property owners of damages from one

source or another; whereas the former act (the Limited

Access Highway Act) makes recovery contingent upon

not just one, but two completely voluntary acts; first,

that of the governing body of the particular township,

borough, city or county where the deprivation of access

takes place, and second, that of the Secretary of High-

ways. In the instant case, the Secretary of Highways

and the Governor of Pennsylvania have deprived appel-

lant property owners of access without compensation.

2

4

Py

4

Conclusion.

CONCLUSION

“The Department of Highways of Pennsylvania

should not be permitted to abrogate its contract with

Peat, petitioners’ predecessor in title, by destroying ac-

cess to Ramp A and the Parkway West under guise. of

the Commonwealth’s Police Power; nor should peti-

tioners summarily be denied due process under the er-

roneous assumption that the Limited Access Highway

Act of 1945 and Article I, Section 10 of the Pennsylvania

Constitution supersede the Fifth and Fourteenth Amend-

ments of the Constitution of the United States.

Respectfully submitted,

JoHN B. NICKLAS, JR.

McCrapy & Nic. As

Attorneys for Petitioners

gy

Opinion of the Court.

APPENDIX

IN THE SUPREME.COURT OF PENNSYLVANIA

WESTERN DISTRICT

In Re: PErrrion or BABCOCK BOULEVARD)

LAND CoMPANY, INC., FOR THE APPOINT-

MENT OF VIEWERS TO ASCERTAIN THE

DAMAGES. ARISING FROM THE CONSTRUC- |

No. 85

TION OF L. R. 765, SECTION 3A IN RoOBIN- ‘ March

SON TOWNSHIP, ALLEGHENY, PENNSYL-

' VANIA

ARAL OF BABCOCK BOULEVARD LAND |

CoMPANy, INC.

—

In RE: PETITION OF RED JACKET Co-

PANY, INC., FOR THE. APPOINTMENT OF

VIEWERS TO ASCERTAIN THE DAMAGES

ARISING FROM THE CONSTRUCTION OF L.

R. 765, SECTION 3A IN ROBINSON Town-

SHIP, HENY COUNTY, PENNSYL-

> - VANTA

Term, 1965

| No. 86

> March

Term, 1965

APPEAL OF RED JACKET CoMPANY, INC. |

Opinion of the Court

Filed May 25, 1965

Orders affirmed. |

Per Curiam.

Musmanno, J. dissents. ,

Paw 1

Report of Viewers.

Report of Viewers

No. 2 November Sessions, 1959

(Filed April 5, 1960)

To the Honorable, the Judges of Said Court:

The undersigned Viewers, appointed by your Hon-

orable Court in the above entitled case for the purpose

set forth in the praecipe herewith aati nn

report:

That having given notice as mas by law of the

time and place fixed by the Court for viewing said prem-

ises, to-wit: December 3, 1959, at 10:30 A.M., they met

thereon on the date and at the said time and viewed the

premises and road located and constructed thereon, and.

then and there adjourned to meet at the Hearing Room

of the Viewers in the City-County Building, Grant

Street, Pittsburgh, Pennsylvania, on the 17th day of

February, 1960, at 9:30 o’clock, A.M. for the purpose of

hearing the testimony of the parties in interest.

Pursuant to said adjournment, they met at the time

and place fixed and heard all the evidence offered by the

parties interested and their witnesses, both the claim-

ants and the Commonwealth of Pennsylvania being rep-

resented by Counsel. f

After hearing and considering the said testimony

the Viewers do now find and report as follows:

That on October 9, 1957, the said BaBcock BOULE-

VARD LAND COMPANY, INC., was the owner of a tract of

land situated in ROBINSON TOWNSHIP, Allegheny County,

Pennsylvania, particularly described in the Petition in

this proceeding, said land abutting on the Penn Lincoln

32

Report of Viewers.

Parkway West as show on Viewers’ Plan marked Ex-

hibit 4, and State Highway Plan marked Exhibit 1-A, .

both being attached to this Report and made part

hereof; that through said tract of land is a Township

road known as Bell Road, extending from Carnegie Bor-

ugh through Robinson Township and now intersecting:

with Ramp “A” of said Penn Lincoln Parkway.

It is alleged by the claimant herein that on October

9, 1957, the Secretary of Highways and the Governor of

the Commonwealth of Pennsylvania proceeded to de-

prive claimant of certain alleged property rights in said

tract by closing, with a barrier, the entrance from the

tract via Bell Road to Ramp “A” of the Parkway, and .

that said closing accomplished a condemnation and

thereby making claimant’s land valueless.

Based on an examination of the Viewers’ Plan and

the State Highway Plan and consideration of the testi-

mony before this Board, it is the opinion of the Viewers

that said action does not constitute a condemnation and

taking of any part of claimant’s property. That said

action in no way interferes with the tract of land abut-

ting Bell Road, but it only amounts to a change in ingress

and egress to the Parkway by traversing Bell Road in a

different direction than formerly. That said action by

the State Highway Department was in accordance with

the provision of Section 4 of the Limited Access High-

way Act of 1945, P. L. 1108.

It is the opinion of the Viewers that claimant’s

right to recover must rest upon some constitutional or

statutory provision, and in the absence of such there can

be -no liability for damages imposed on the Common-

wealth. Consequently claimant’s right to damages is

On

o

| 33

Report of Viewers.

refused. However, the Viewers’ award to T. J. McGov- —

E, the sum of ONE HuNpDRED FirTy and no/100ths

($150.00) DoLLars for engineering services rendered in

the preparation of the Viewers’ Plan, said sum to be pay-

able by the Commonwealth of Pennsylvania.

All of which is respectfully submitted this 5th day.

of April, 1960. 3 9

3 | H. S. Douezass

JOHN J. O’KEEFE

CHARLES M. HALLORAN

‘Viewers

Report of Viewers

No. 3 November Sessions, 1959

(Filed April 5, 1960).

To the Honorable, the Judges of Said Court:

The undersigned Viewers, appointed by your Hon-

orable Court in the above entitled case for the purpose

set forth in the praecipe herewith returned, respectfully

report: | : |

That having given notice as required by law of the

time and place fixed by the Court for viewing Said prem- _

ises, to-wit: December 3, 1959, at 10:30 o'clock, AM.,

they met thereon on the date and at the said time and

viewed the premises and road located and constructed

thereon, and then and there adjourned to meet at the

Hearing Room of the Viewers in the City-County Build-

ing, Grant Street, Pittsburgh, Pennsylvania, on the 17th

day of February, 1960, at 9:30 o’clock, A.M. for the pur-

Pose of hearing the testimony of the parties in interest.

Report of Viewers.

Pursuant to said adjournment, they met at the time

and place fixed and heard all the evidence offered by the

parties interested and their witnesses, both the claimant

and the Commonwealth of Pennsylvania being repre-

sented by Counsel. .

After hearing and 8 the said teatimony

‘the Viewers do now find and report as follows: |

That on October 9, 1957, the said Rep JACKET Com-

PANY, INc., was the owner of a tract of land situated in

ROBINSON TOWNSHIP, Allegheny County, Pennsylvania,

particularly described in the Petition in this proceeding,

said land abutting on the Penn Lincoln Parkway West as

shown on Viewers’ Plan marked Exhibit 1, and attached

to this Report and made part hereof; that abutting said

tract of land is a Township road known as Bell Road,

extending from Carnegie Borough through Robinson.

Township and now intersecting with Ramp “A” of. ears

Penn Lincoln Parkway.

It is alleged by the claimant herein that on October

9, 1957, the Secretary of Highways and the Governor of

the Commonwealth of Pennsylvania proceeded to de-

prive claimant of certain alleged property rights in said

tract by closing, with a barrier, the entrance from the

tract via Bell Road to Ramp “A” of the Parkway, and

that said closing accomplished a condemnation and

thereby making claimant’s land valueless.

Based on an examination of the Viewers’ Plan and

the State Highway Plan and consideration of the testi-

mony before this Board, it is the opinion of the Viewers -

that said action does not constitute a condemnation and

taking of any part of claimant’s property. That said

action in no way inteferes with the tract of land abut-

of April, 1960.

35

Report of Viewers.

ting Bell Roard, but it only amounts to a change in in-

gress and egress to the Parkway by traversing Bell

Road m a different diréction than formerly. That said

action by the State Highway Department was in accord-

ance with the provision of Section 4 of the Limited Ac-

cess Highway Act of 1945, P. L. 1108. g

“2 is the opinion of the Viewers that claimant’s

right to recover must rest upon some constitutional or

statutory provision, and in the absence of such there can

be no liability for damages imposed on the Common-

wealth. Consequently claimant’s right to damages is

refused. However, the Viewers’ award to T. J. McGov-

ERN, the sum of Firry and no/100ths ($50.00) DoLLARS

for engineering services rendered in the preparation of

the Viewers’ Plan, said sum to be payable by the Com-

monwealth of Pennsylvania.

All of, which is respectfully submitted this 5th day

H. S. Dovaiass

Joun J. O'KEEFE -

CHARLES M. HALLORAN

Viewers

Opinion.

Opinion

No. 2 November Sessions, 1959

No. 3 November Sessions, 1959

(Filed September 25, 1964)

Before: ALDISERT, BROSKY and PRICE, IJ.

ALDISERT, J. ick

The petitioner in each of the above cases is the

owner of property abutting a limited access highway

whose right of access thereon has been taken away by

virtue of a physical barricade which the Commonwealth

erected at the intersection of a public road and that

highway. \

The cases are before the Court on e filed

by the petitioners to the Reports of the! of Viewers.

Since identical issues are presented in each case, they

will be treated as one.

At No. 2 November 88 1959, Road Docket, .

Babcock Boulevard Land Company, Inc. (hereinafter ©

called Babcock) filed its Petition for Viewers in the

Court of Quarter Sessions of Allegheny County, alleging

à condemnation of Babcock’s property by the Common-

wealth and requesting the as of viewers to

assess damages.

At No: 3 November Sessions, 1959, Road Docket, a

similar Petition for Viewers was filed by Red Jacket

Company, Inc. (hereinafter called Red Jacket).

In both cases viewers were appointed, viewed the

property involved, heard testimony and arguments, and

| filed — which were * nisi on _— 5, 1960.

37

Opinion.

The viewers in each case refused the claims of the peti-

tioners for damages on the grounds that the action of

the Commonwealth did “not constitute a condemnation

and taking of any part of claimant’s property”, that the

“action by the State Highway Department was in accord-

ance with the provisions of Section 4 of the Limited Ac-

cess Highway Act of 1945, P.L. 1108”, and that in the

absence of some constitutional or statutory provision, no

liability for damages can be mee on the Common-

wealth.

The official transcripts of the testimony before the

Board of Viewers have been made a part of the record in

each case by orders of court consented to by all parties.

Pursuant to a plan approved by the Governor on

June 2, 1950, the Commonwealth of Pennsylvania located

and constructed in Allegheny County a limited access

highway designated as Legislative Route 765, Section

3A, and popularly known as the Penn Lincoln Parkway

West (hereinafter called Parkway). :

This Parkway consists, for the most part, of two

separate one-way roadways. One roadway (hereafter |

called Roadway East) extends East to Pittsburgh where

it joins the Penn Lincoln Parkway East; the other road-

way extends West to the Greater Pittsburgh Airport

. (hereafter called Roadway West). The only means of

_ egress and ingress to the Parkway is by the use of

various interchanges located at points along its route.

XA portion of this Parkway is the result of incor-

porating an existing highway and converting it to one

of limited access. The remaining portions, including the

area material to these cases, were newly located and con-

&

Opinion.

At a point near the boundary line between Roaayn

Farms Borough ‘and Robinson Township, at what is

now known as the Rosslyn Farms Interchange, a one-

way limited access ramp allowing ingress to the Road-

way East only, designated Ramp A, was planned and

N actually constructed: At this point both the Parkway

and Ramp A intersect, at roughly a 45° angie, a town-

ship road called Bell Road..

Bell Road originates in the e of Carnegic

where it joins Bell Avenue and the general system of

streets. Before the construction of Ramp A. and the

Penn Lincoln Parkway West, it extended in a northerly y.

direction through ‘Robinson Township and into and

through Rosslyn Farms Borough. It was laid out as a

‘public road in proceedings at No. 5 June Sessions, 1852

_ of this court and afforded the properties of Babcock and

Red Jacket access to the general system of streets in

both directions. Bell Road remains a public road today

even though there is testimony that its present condition

makes passage thereon very difficult.

As a result of the construction of Ramp A at the

_ Rosslyn Farms Interchange, Bell Road was términated

at the southern right of way line of Ramp A instead of

continuing north into Rosslyn Farms Borough as it had

previously. It now became possible to proceed from Bell

Road and turn right onto Ramp A, and then onto the

Roadway East, or to proceed from Rosslyn Farms east

on Ramp A and turn right onto Bell Road.

Babcock's property lies on both sides of Bell Road

with its northern boundary abutting on Ramp A and the

Roadway East. In addition, it appears that this peti-

39

tioner also owns a tract of land on the other side of the

Parkway abutting the Roadway West.

Red Jacket’s property lies between and abuts both

Bell Road and the Roadway East. Both properties were,

at the time of the 1950 condemnation owned by an indi-

vidual named George Peat. °

On June 23, 1952 George Peat, ae predeces-

sor in title, for and in consideration of the sum of

88,000.00 executed and delivered to the Commonwealth

of Pennsylvania a “Deed of Release and Quitclaim—

Limited Access Highway“, in which he released the

‘Commonwealth of all claims “for or on account of any

taking, injury, or destruction of property, through or

by reason of the improvement of the said road (Legisla-

tive Route No. 765, Section 3A) * * * or through or by

reason of the deprivation of the right of access, egress

ingress to and from the section of highway, or through

or by reason of the subsequent maintenance thereof ac-

cording to the standards of the Department of High-

ways”. A highway plan; prepared by the Commonwealth,

showing the proposed improvement and the extent of

the right of way to be taken was expressly made pert of

this Deed.

By this deed and . the Commonwealth con-

demned and duly compensated the owner, George Peat,

for that portion of his property shown by the plan to

be required for the location and construction of Ramp A

and the Parkway, and for all claims that would arise on

account of this condemnation. The plan, besides showing

the portion of Peat’s property to be taken and injured,

also contained data and specifications showing in exact

detail how the proposed improvement would affect the

40

Opinion.

entire general area. The plan disclosed the right of way

and slope requirements affecting the properties of other

owners as well as the access point at the intersection of

Bell Road with Ramp A. This access point was shown to

_ be and is within the right of way taken by the Common-

wealth.

Subsequently, Peat conveyed this property to Bab-

cock Boulevard Land Company, Inc., which in turn later

conveyed a portion thereof to Red Jacket Company, Inc.

_ On October 9, 1957, pursuant to a plan revision ap-

proved by the Governor, the access point at the inter-

ecction Of Ramp A with Bull Rosd was chased by

physical barricade.

The result was the creation of a cul-de-sac or dead

end whereby petitioners, as well as the general traveling

public, lost the right of ingress to the roadway leading

east to Pittsburgh and the right of egress from Rosslyn

Farms Borough to Bell Road via the use of Ramp A.

After the erection of the barricade the only means

of access remaining to them was through that end of

Bell Road that connects with Bell Avenue and the general

system of streets to the south. Thereafter it, was still

possible to reach Rosslyn Farms Borough and the Road-

way East, but to attain to the degree of access petitioners’

had prior to the 1957 plan revision necessitated added

circuity of travel. It now became necessary to proceed

through the general system of streets in the Borough of

Carnegie to the next interchange to reach the Roadway

East, a distance of approximately one and one-tenths of

a mile, that interchange being approximately one mile

away and the first possible destination on entering the

| 41

. Roadway East at the Rosslyn Farms Interchange. But

whereas petitioners formerly proceeded to the next inter-

change on a limited access two lane roadway, they now

| must travel over local service township and

roads.

There was testimony 1 the Board of Viewers

that as a direct result of the plan revision of 1957 and

the erection of this barricade, petitioner Babcock’s prop-

erty suffered a loss of over $100,000 in estimated value,

and petitioner Red Jacket’s property ‘suffered a loss of

approximately $12,000. These losses were attributed to

the fact that prior to the construction of the barricade

the properies, having immediate access to the Parkway

East by way of Bell Road and Ramp A, had the enhanced

character of being eminently suited for light commercial

use. It is contended that they lost this character with

the destruction of the barricade. —

This is the damage of which petitioners complain.

Relying largely on the Creasy v. Stevens case, 160 F.

Supp. 404, reversed 79 S. Ct. 1034, 360 U. S. 219, 3 L. Ed.

2d 1186 (holding that an abutting landowner's existing

right of access is a property right, the total deprivation

of which amounts to a taking), they allege that the

closing of Bell Road at its intersection with Ramp A con-

stitutes a taking of their property right without compen-

sation and hence is in violation of the Fifth and Four-

teenth Amendments of the United States Constitution,

as well as Article I, Section 10, and Article XVI, Section

8, of the Pennsylvania Constitution; and that (as Creasy —

v. Stevens held), since Section 8 of the Limited Highway

Act of 1945, P. L. 1108, 36 P. S. 2391, authorizes this,

it is nn unconstitutional.

Opinion.

‘It is Commonwealth’s position that the 1957 plan

revision was motivated by traffic safety and public wel-

fare considerations, that petitioners never possessed an

abutter’s right of access directly from their proverties

onto Ramp A and the limited access Parkway, and that

their right of access to and from Bell Road, a public road,

has never been affected. The Commonwealth contends

that the law in Pennsylvania is clear that, in the absence

of a Constitutional or statutory provision, the closing of

Bell Road at its intersection with Ramp A; as authorized

by. Section 4 of the Limited Access Highway Act of

1945, supra, gave the petitioners no right to damages

since it occurred wholly within the right of way area

quit-claimed to and acquired by the State in 1952.

} Since the act complained of is the erection of the

barricade as authorized by the plan revision of 1957, the ©

court is not concerned with the effect of the construction

of Ramp A and the Parkway on petitioners’ properties

pursuant to the condemnation of 1952, except i in two re-

spects:

First, whether or not an abutting landowner is

vested with a right of access where the State constructs

a limited access highway adjacent to his property.

‘Secondly, whether or not the highway plan that was

expressly made a part of the Deed of Quitclaim and Re-

lease executed by George Peat.in 1952 gave him a con-

tract right to the access point at the intersection of Bell

Road with Ramp A as shown on that plan.

The basic issue before the court is whether or not

the “easement” of access is a property right for the

. deprivation of which the Commonwealth is liable in

damages under Article I, Section 10 of its Constitution.

43

Opinion.

This is a situation in which the property owners

abut both a limited access Highway and a public road

leading onto that * We must determine whether

or not: 3

(a) the creation of a limited access highway vests

an easement of access in the abutting landowners; and

(b) the creation of a cul-de-sac is a “taking” of

property for.which the Commonwealth must ‘respond in

damages.

HISTORICAL 3 DEVELOPMENT N

In any determination of the constitutional limita-

tions upon the power of eminent domain, a basic declara-

tion of what constitutes a taking of re in its con-

stitutional sense is essential.

The Constitution of Pennsylvania contains two such

limiting provisions. Article I, Section 10, which is sub-

i stantially identical to the Fifth Amendment to the Fed

eral Constitution, provides:

„ nor shall private ‘property be taken or ap-

plied to public use, without authority of law and

without just compensation being first made or se-

cured”

Article XVI, Section 8 3

„Municipal and other corporations and individ-

uals * * shall make just compensation for property

taken, injured or destroyéd by the construction or

enlargement, of their works, highways or improve-

ments * * *” (Emphasis supplied). }

Two distinctions must be noted. The first is that

while Article I, Section 10 applies to both the Common-

wealth and those to whom it delegates this power, Ar-

44 x

ticle XVI, Section 8 by its terms applies only to munici-

pal and other corporations and individuals“. Thus it is

inapplicable where the Commonwealth itself is the con-

demnor. Com. v. McGrady, 399 Pa. 586, 592, 160, A. 2d

715; Ewalt v. Penn Turnpike Commission, 382 Pa. 529,

115 A. 2d 729; Soldiers and Sailors Memorial Bridge, 308

Pa. 484, 162 A. 2d 309.

The second distinction concerns the precise meaning

to be given to the wards taken or applied“ in contra-

distinction to the words property taken, injured or de-

stroyed“, Eminent domain being a sovereign power

vested in the Commonwealth and an inherent attribute

of sovereignty (Jacobs v. Clearview Water Supply Co.,

220 Pa. 388, 69 At. 870, 21 L. R. A. (N. S.) 410; Phila-

delphia Clay Co. v. York Clay Co., 241 Pa. 305, 88 At.

487), it is logically apparent that the only limitations

upon the free exercise of this paramount power to use

property for the public benefit are those imposed either

by the constitution or the legislature. Com. v. Plymouth

Coal- Co., 232 Pa. 141, 81 At. 148, affirmed 34 S. Ct. 359,

232 U. S. 531, 58 L. 713; Philadelphia Clay Co. v.

York Clay Co., supra; Lazarus v. Morris, 212 Pa. 128, 61

At. 815.

Thus, in the absence of any statutory assumption of

liability, the Commonwealth as condemnor is required

to make compensation for property taken, but appar-

- ently is not under the same compulsion where property

is injured or destroyed.

The concept of property. in its eee sense

has been undergoing a radical change in recent years.

Though at common law the term denoted the legal sig-

nificance of the — of. persons in relation to a tract

Opinion.

of land or a chattel, the meaning ascribed to the term at

the time many of the eminent domain provisions were

‘framed and adopted was synonymous to the subject

matter itself. Instead of denoting the aggregation of the |

qualified rights of users, exclusion, enjoyment and

position, the word “property” in the area of eminent

domain embraced only the meaning often used in com-

mon parlance to denote the tract of land or chattel itself.

(Sedgwick, Const. Law. 2d ed. pp. 456-458; Lewis Emi-

nent Domain, 3rd ed. §66(57).) Thus a “taking” in its

constitutional sense meant a physical, tangible appro-

priation of the property of another.

In reference to this, the Supréme Court of the

United States has said:

“It would be a very curious and unsatisfactory

result, if, in construing a provision of constitutional

law, always understood to have been adopted for

protection and security to the rights of the indi-

vidual as against the government, and which has

received the commendation of jurists, statesmen

and commentators as placing the just principles of

the common law on that subject beyond the power

of ordinary legislation to change or control them,

it shall be held that if the government refrains from

the absolute conversion of real property to the uses

of the public it can destroy its value entirely, can

inflict irreparable and permanent injury to any ex-

tent, can, in effect, subject it to total destruction

without making any compensation, because, in the

narrowest sense of that word, it is not taken for the

public use. Such a construction would pervert the

constitutional provision into a restriction upon the

rights of the citizens, as those rights stood at the

Opinion.

.common law, instead of the government, and make

it an authority for the invasion of private right

under the pretext of the public good, which had no

warrant in the laws or practices of our ancestors.”

Pumpelly v. Green Bay Co., 13 Wall. 166; 177, 1871.

Since 1871 a concept has gradually developed that

any substantial interference, subversion, or obstruction

of the essential attributes of ownership is a “taking” of

property.

As Corpus Juris defines ant as often cited with

approval by our courts, a taking is “any destruction,

restriction or interruption of the common and necessary

use and enjoyment of property in a lawful manner

20 C. J. 566; Caplan’s Appeal, 293 Pa. 483, 490; Miller v.

Beaver Falls, 368 Pa. 189, 196, 82 A. 2d 34.

In holding that low and frequent flights of aircraft

taking off from and landing at an airport substantially

‘interfered with an owner’s use and enjoyment of his

land and constituted the “taking” of an air easement

over the property, our Supreme Court has said in the |

case of Griggs v. Allegheny County, 402 Pa. 411, 414,

reversed 82 S. Ct. 531, 369 U. S. 84, 7 L. Ed. 2d 585, a

“taking” occurs when the entity clothed with the power

of eminent domain substantially deprives an owner of

the beneficial use and enjoyment of his property. In

U. S. v. Causby, 328 U. S. 256, a similar definition is

given.

Wherefore we think it indisputable that, unlike

former times, to constitute a “taking” there is no need

today for an actual, physical seizure of land and that

' “whenever the lawful rights of an individual to the pos-

‘session, use or nnr of his land are in a aay degree

see

> inact ean eae

0

an 5 47

8 Opinion. ° |

abridged or destroyed by reason of the exercise of the

power of eminent domain, his property is, pro tanto,

taken, and he is entitled to compensation. A Miller v.

Beaver Falls, supra.

ABUTTERS EASEMENT RIGHTS

‘The nature of an abutting owners’ right of access

is what is known in law as an “easement appurtenant”.

It not only enables the owner. to enter and leave his

premises by way of the public road, but also establishes

the accessibility of his premises for his patrons, clients,

and customers. 28 C. J. S. Easements, 88 14; 25 Am. Jur.,

Highways, § 154; 39 C. J. S. Highways, § 141; Restate-

ment, Servitudes, §§ 450, 453, 507; 10 McQuillin Munici- :

pal Corporations, 671 (3rd ed. 1950). |

It arises as a private contract right where an n

of land subdivides it into lots and streets, and a pur-

chaser relies on a plan showing his lot to be on a street.

O'Donnell v. Pittsburgh, 234 Pa. 401; Chambersburg

Shoe Mfg. Co. v. Cumberland Valley Railroad Co., 240

Pa. 519; McGarrity v. Commonwealth, 311 Pa. 436, 166

At. 895; Walsh v. Scranton, 23 Pa. Superior e 276

Lang v. Smith, 113 Pa. Superior Ct. 559. .

Aside from a private contract right, the real source

of the right of access is generally conceded to have

arisen by the judicial decisions in the so-called “elevated

railway cases”. Unde New York statutes establish-

ing streets, it was held that a trust was created for the

benefit of the public at large as well.as for the owners

of abutting property. The exclusion of the public and

the diversion of the streets to private use violated the

rights of the abutters and authorized them to recover

48 ; *

the property-value losses traceable to the breach of

trust. Story v. New York Elevated R. R., 90 N. T. 122

Lahr v. Metropolitan Elevated Ry., 104 N. T. 268, 10

N. E. 528; Clarke, The Limited Access Highway, 27

Wash. L. R. and State Bar J. 111, 117; Fredvays and the

Rights of Abutting Owners, 3 Stanford L. R. 298; Cun-

ningham, The Limited Access Highway From a Law-

-yer’s Viewpoint; 13 Mo. L. R. 19, 31; 41 Lale L. J. 221.

Lewis, in his work, Eminent Domain, § 121 (91 f)

. (3rd ed. 1909), draws these access rights from an

analogy with the private contract righ€ cases.

In tracing the origin of the whole doctrine ec...

abutter’s rights, Mr. Justice. Holmes commented in

Muhlker v. New York & H. R. Co., 197 U. S. 544, 572, 25

S. Ct. 522, 528, 49 L. Ed. 8722

„The plaintiff’s rights, whether expressed in

terms of property or of contract, are all a construc-

tion of the courts, deduced by way of consequence

from dedication to and trusts for the purpose of a

public: street. They never. were granted to him or

his predecessors in express words, or, probably, by

any conscious implication. If at the outset the New

York courts had decided that, apart from statute or

express grant, the abutters on a street had only the

rights of the public and no private easement of any

kind, it would have been in no way amazing. It

would have been very possible to distinguish be-

tween the practical commercial advantages of the

expectation that a street would remain open and a

right in rem that it would remain so * But again,

if the plaintiff had an easement over the whole

street he got it as a tacit incident of an eppropria-

—— Sees eno

tion of the street to the uses of the public * * it

was possible for the New. York courts to hold, as

they seem to have held, that the easement which

they had declared to exist is subject to the fullest

exercise of the primary right out of which it sprang,

and that any change in the street for the benefit of |

public travel is a matter of public right, as against

what I have called the parasitic right which the

plaintiff: claims.” (Emphasis supplied).

STATE COURTS DEFINE EASEMENT

The Supreme Court of the United States has de-

_ Clared that:

_ “The same law which declares the easement de-

fines, qualifies and limits them. Surely such ques-

tion must be for the final determination of the State ;

Court. It has authority to declare that the abutting

landowner has no easement of any kind over the

abutting street; it may determine that he has a

limited easement, or it may declare that has an

absolute and unqualified easement. The right of an

owner of land abutting on public highways has been

a fruitful source of litigation in the courts of all

the States, and each state has in the end fixed

and. limited, by legislation or judicial decision, the

rights df abutting owners in accordance its own

view of the law and public policy.” Sa rc. New

York, 206 U. S. 536, 548, 27 S. Ct. 686.

Thus, while the Fifth Amendment of the United

States Constitution applies to the states via its incor-

poration into the Fourteenth Amendment, (Penn Coal

Co. v. Mahon, 260 U. S. 393, 43 S. Ct. 158, 67 L. Ed. 322)

*

50 |

. Opinion.

both are clearly inapplicable with regard to the question |

of abutters’ rights. Sauer v. New York supra; U S. v.

Powelson, 319 U. S. 268, 279; Reiehelderfer v. Quinn, 287

U. S. 315, 349, 53 S. Ot. 177, 77 L. Ed. 331, 83 A. L. R.

1429; Meyer v. City of Richmond, 172 U. S. 82, 19 S. Ct.

106, 43 L. Ed. 374.

‘STATE HOLDINGS WIDELY DIVERGENT

An examination of the law in other states discloses

a wide divergence on this subject. Persuasive precedents

can be found on both sides and the decisions are totally

irreconcilable. Even where the constitutional guarantees

are identical in phraseology, namely, requiring .compen-

sation for property “taken”, or “taken or appli

“taken or damaged”, or “taken or destroyed”, or “taken

or injured”, the yarious jurisdictions have not agreed in

the interpretation of these terms. For example, Massa-

ch , New Hampshire and Tennessee all provide that

property shall not be taken or applied to public use

without just compensation But whereas Massa-

chusetts and New Hampshire have declared that access

is not a property right, Tennessee allows recovery in

such cases. Davis v. County Com’rs., 153 Mass. 218, 26

N. E. 848, 11 L. R. A. 750; Cram. v. City of Laconia, 71

N. H. 41, 51 A. 635, 57 L. R. A. 282; Illinois Cent. R. Co.

v. Moriarity, 135 Tenn. 446, 186 S. W. 1053. ä

Numerically, the preponderance lies with those

states holding that access is a property right within the

constitutional. guaranty of just compensation. Nearly

all commentators concur in this conclusion. 29 C. J. S.

Eminent Domain § 105; 18 Am. Jur. Eminent Domain

§ 158, 183; 49 A. L. R. 330; 93 A. L. R. 639; McQuillan,

e

.

ap aT he

Municipal Corporations, 2d Ed. vol. 4, 58 1526-1527;

Lewis, Eminent Domain, ird Ed., vol. 1 §-121; As Harv.

L. R. 372; 39 Yale L. J. 128; 27 Wash. L. R. and State Bar

J. 111; 3 Stanford L. R. 298. However, agreeing on this

essential point, they differ considerably i in flxing its pre-

eise nature and extent. 1 at

5 Petitioners rely on the cases of Breinig v. Allegheny

County, 332 Pa. 474, Walsh v. Scranton, 23 Pa. Superior

Ct. 276, Lang v. Smith, 113 Pa. Superior Ct. 559, and

Stuart v. Gimbel Bros., 285 Pa. 102, for the proposition

that access is a property right in Pennsylvania. They

rely on the case of Creasy | v. Stevens, supra, for the

propositions that no physical appropriation of land is

necessary to constitute a taking of private property and

that the total deprivation of an cwisting right of access -

is a taking of property for which the *

must make just compensation.

We cannot agree with this dae.

The cases cited by the petitioners and by the case of

Creasy v. Stevens were declarations of abutters’ rights

under Article XVI, Section 8 of the Pennsylvania Con-

stitution and various statutory enactments expressly as-

suming liability where the condemnor is one other than

the Commonwealth itself. While we concur both in the

holding that there need no longer be a physical appro-

priation of land to constitute a taking of property, and

that access is a property right by virtue of Article XVI.

Section 8 and various legislative enactments applicable

to “municipal and other corporations and individuals“,

we cannot agree that this amounts to a declaration that '

access is a compensable property right where the con -

demnor is the Commonwealth.

52 5

only Article 1 Section 10 of the r Con-

stitution is applicable where the Commonwealth is the

condemnor and the qu _ is one of abutters’ access

rights. °

Article I, Section 10 differs greatly from Article

XVI, Section 8 in concept.

‘Where Article XVI, Section 8. guarantees a just com-

pensation where property is taken, injured, or de-

stroyed”, Article I, Section 10 guarantees a right to dam-

ages only where land is taken or applied“ to public use.

Eminent domain being an inherent power of sovereignty,

_ in the absence of legislative enactments the sole qualifi-

cations on the full exercise of that power are those im-

posed by the constitution itself. Thus, to say that access

is a property right because Article XVI, Section 8 and

various legislative enactments have vested a right of

compensation in property owners where the condemnor

is a municipal or other corporation or individual, is not

a declaration that the same limitation is n where

the Commonwenlth is the condemnor.

As the Supreme court of the United States has said:

“Surely. such question must be for the final

determination of the State Court. It has authority

to declare that the abutting landowner has no ease-

ment of any kind * * * , it may determine that he

has a limited easement, or it may declare that he

has an absolute and “er easement.” Sauer v.

New York, supra.

d

I, Section 8 of the Pennsylvania Constitution or not at

‘ Therefore, in the absence ‘of statute, petitioners .

must establish their right to compensation under Article

2

O se

0 5 me

all. Monongahela Navigation Co. v. Coons, 6 W. & S. 101;

' Sharpless v. Mayor of Philadelphia, 21 Pa. 147; Best v.

Zoning Board of Adjustment of City of nen. 393

Pa. 106, 141 A. 20 6% . ‘

The courts of ie e have a held, prior

to the Griggs v. Allegheny County case (supra) that

Article I, Section 10 of its Constitution requires an

-actual appropriation of land to constitute a “taking” of

property and that the. Commonwealth, in the absence of

any statutory ‘assumption of liability, is not liable for

damages in the absence of such “taking”. State High-

way Route No. 72, 265 Pa. 369, 375; Hoffer v. Reading

Co., 287 Pa. 120, 124; Soldiers and Sailors Memorial

Bridge, 308 Pa. 487, 491, 492; McGarrity v. Common-

wealth, 311 Pa. 436, 438; Locust St. Subway Construc-

tion, 117 Pa. Superior Ct. 86, 90, 92, 93; Heid v. Aue-

gheény County, 122 Pa. Superior Ct. 312, 315; Heil v. Alle-

gheny County, 330 Pa. 449, 453; Brewer v. Common-

-wealth, 345 Pa. 144, 145; Koontz v. Commonwealth, 3614

Pa. 145, 147; McCrady Case, 399 Pa. 586, 591. 8

It has been held that in the absence of a statute

there is no liability for damages when a street or high-

way is vacated. Heil v. Allegheny County, supra, and

cases cited therein. It has relegated all ‘other injuries

to the of “damnum obsque injuria” or consequential

damages for which there is no right to compengation.

Soldiers and Sailors Memorial Bridge, supre. However,

when land is taken for highways, the abutting owner re-

tains the right of access as an incident to ownership of

ee 06 bie: lene: Mee Cone, gets Se

cases cited. therein. 6

The issue thus narrows itself to a determination —

whether the holding of the Griggs v. Allegheny County

case that “a taking occurs when the entity clothed with .

the power of eminent domain substantially deprives an

owner of the beneficial use and enjoyment of his prop-

erty” amounts to a declaration that henceforward access

is to be a compensable property right in cases where the

Commonwealth is the condemnor.

In view of the. long lipe of cases cited * and

the declaration of our Supreme Court that they are the

well-established principles of law within thie state, it is

our opinion that it does not. ;

And if, in the absence of shies. access is not a

property right. where the Commonwealth is the con-

demnor, then it would be patently improper for a lower

court within this jurisdiction to create a new right by

the simple process of redefining its Constitution,

{> DISCUSSION OF CONTRACT RIGHT |

The petitioners further contend that the highway

plan showing the access point at the intersection of Bell

Road and Ramp A, which was expressly made part of the

_ deed of quit-claim and release executed by George Peat,

created a contract right in the petitioners in the nature

of a private easement of access. | ae

—

As previously indicated, that t plan d disclosed not only

| how the land of the petitioners’ predecessor in title would

_ be directly taken and injured, but also how and to what

extent the proposed improvements would affect that en

tire general area. It showed how the lands of other prop-

f

+

55

. : .

numerous en details and rpecications totally

unrelated to Peat’s land.

Common sense would ‘indicate that there was no

intent that the plan should confer on George Peat, a

contract right to require the Commonwealth to take so

much of his neighbor’s Jand and no more, that within

its right of way the Commonwealth may do nothing in

the way of additions and improvements without his con-

sent, and that, in effect, the Commonwealth be required

to surrender its police power over that portion of the

Parkway to his discretion.

The facts here are wholly unlike the situations out | |

of which à private contract right of access is said to d=

arise. The essential difference is one of intent. ü

Where one subdivides one’ 8 property into lots and

plots streets thereon, one either intends that purchasers

should rely on the plan showing their lots to be on a

street or one intends to vest an express easement in

those streets in the purchasers. In both cases the.result

is the same;. the primary intent is to confer a private

right upon each purchaser of a lot within that plan.

However, under the facts before the court, it is quite

= evident thet the Commonwealth, in planning and con-

___-structing the access point between Bell Road and Ramp .

7 A, and the limited access highway, had only in mind its

primary benefit to the entire traveling public...

It had no intent to confer a private contract right

upon anyone. In fact, we may presume that there is an

express reservation that should this access point prove

detrimental to the general welfare and safety of the:

traveling iia ‘the Commmonwealtt: —— ee

ae oO: te

power to control, modify or eliminate this access point.

There being no intent to confer a private right of ease- °-

ment in any single landowner, it is the opinion of this

Court that the mere fact that an access point at the

: intersection of Bell Road and Ramp A was plotted on the

highway plan that was made part of the deed executed

by George Peat, is insufficient to establish that a private

contract right or easement was granted him in reroga-

tion of the power of the Commonwealth to regulate its

| eee best interests of the Lane traveling

— public

; By the terms of this Deed.of Quitclaim and Release,

George Peat, surrendered to the Commonwealth all

claims arising from the 1950 condemnation whether it

3 — b the taking of the right of way for the proposed Park-

way, the denial of access from the portions of his land

abutting the limited access highway, the severance of

the parts of Bell Road in Robinson Township from tge

portion lying in Rosslyn Farms Borough, the separation :

of Peat’s p by the Parkway itself, or any other

claim “for or on account of any taking, injury, or de-

struction of property, through or by reason of the im-

provement of the said road, or through or by rea-

son of the deprivation. of the right of access, egress and

ingress to and from the section of highway pe sat td

The taking, i injury, and destruetion of property pur-

_ suant to the 1950 condemnation*having been compen-

gated for and no private contract right to the access

a point between Bell Road and Ramp A having accrued,

the action of the Commonwealth pursuant to the 1957

plan revision. constituted « separate and distinct occur.

- Tenge, unrelated to thie, 1900 condesnnation, Sig es

an

Vv

, Sines ‘the: erpetion dr Uns Gervlca@s ‘within: tus Sent

or way lines acquired by the Commonwealth falls in the

category of consequential damages, as defined in

Soldiers and Sailors Memorial Bridge, supra, the Court

is constrained to hold that there has been no. “taking”

af property within the meaning of Article I, Section 10

of the Pennsylvania Constitution as a matter of law.

* But assuming that some measure of accéss is nec-

essary for the beneficial use and enjoyment of prop-

erty, assuming that the holding of the Griggs v. Al-

legheny County case, supra, amounted to a declara-

tion by our Supreme Court: that henceforth access is

to be hy compensable property right within the mean-

in — thet I, Section 10 of its Constitution, and.

| g that petitioners have not released to the Com-

me Ealth the claims arising from the 1950 condem-

nation, then this Court must determine whether or not

a right of access accrues to an abutting property owner |

where the Commonwealth creates a limited access highh-

way, and whether or not a right to just compensation

acerues where the Commonwealth has created a oul-

de-sac or dead-end. .

The facts and i issues ey Srey the Court a are not those

presented in the case of Creasy v. Stevens, supra. In =

that case there was the total destruction of an ezist-

ing right of access by the conversion of an existing

highway into one of limited access. In this case, the

portions of the limited. access highway ‘upon which

petitioners abut were newly located and. constructed

and the creation of a cul-de-sac by terminating a street

pi painerair onto n

a eee

W A pando. peaked It is.

«3 a fundamental ingredient in the spread of civilization,

the growth of commerce, and the acquisition of liveli-

- hoods. But with each socio-economic advance has come

more and more traffic congestion and mounting per-

sonal injuries, death tolls, and billions in property

loss. Our highway systems become increasingly in-

adequate with each passing year in spite of the billions

of dollars annually spent for the construction and main-

tenance of public roads. The presence of unlimited

entrances to the highway, the parking, the commercial

use of roadsides, and the frequent ingressing and egress-

a e .

gestion and peril for the traveler. , x

The high cost of highway facilities has already

seriously impeded their construction. Thus the de-

termination of the precise extent of an abutter's right

of access should be the result of a. weighing of the rela-

tive interests of the public and the individual, so as to |

arrive at a just balance. Neither should the function

of the government to act for the public good be unduly

restricted, nor should the constitutional policy of in-

suring the individual against an unreasonable loss,

-occasioned by the exercise of ria ese power, be

violated. |

hie en sat chend be: considered are, gm the

one hand, the magnitude of the damage to the owner of

land, and, on the other, the desirability and necessity

for the particular type of improvement and the danger

that the granting of compensation will tend to retard

or prevent it. Pennsylvania Coal Co. v. Malion, 260-

V. 8. 398, 48 8. Ct. 158, 67. L. Ha. 22. 25 ALR 1321;

fy.

. N : é | 59

/ ay ane

Bacich v. Board “of > Control of California, 23 Cal. 2d

343, 144 P. 2d 818; 34 Columb. L. R. 938; 43: Columb”

L. R. 598. 3

A previously indicated, the Supremé Court of the |

United. States has repeatedly. declared that the rec-

ognition and definition of interests within the term

private property are essentially matters for each 2

state to determine. Meyer v. City. of Richmond, supra;

7 Sauer v. New Tork, supra; eldfer v. Quinn, —

a U. S. v. Powelson, supra. * . 1

If an abutter is given a right of access ‘at every

point at which his property abuts, namely an abso-

lute right of access, then every degree of “injury”,

separate traffic lanes, the. prohibition of U-turns, the

designation of one way streets or any of the other nu-

merous regulations usually e become * dome

measure compensable. 35 Br

The. result is the destruction of the distinction be-

‘tween Article XVI, Section 8 and Article I, Section 10,

and the difference between the concept of the “taking” 7

of property and the injury and destruction” of prop-

erty will have ceased to have any meaning. The cost

of improvements will clearly become prohibitive.

H a total denial of access is non-compensable-where

the Commonwealth is the condemnor, then theoretically _

the Commonwealth can, by the erection of high barriers

around the entire circumference of one’s property,

3 totally deny a property owner of the beneficial use and 8

N Kaan, e pgp amet per:

whether it be the vacation of streets, the creation of -

“2d.” ogee

Se result of the improvement and the owners may be

80 ni ae

= ‘The third: alternative Wen the concept that

ae n toe thse beneficial 25

~ use and enjoyment of property, and that the total de-

struction of ae access oven per a * of

> pee e ee e ue ee ened zeseé0shie:nocees

which, when it. becomes vestelff from use, becomes a

property right. There then need be no fear that in-

dividual riglits will be unduly subordinated to the rights

of society, for each claimed exercise’ of. governmental

* power is ‘subject to judicial examination. N 5

The limitation, and regulation of highway traffic zs

comes under the police power (25 Am. Jur., Highways

5 253; 40 C. J. S. Highways § 232), and highways exist

Primarily for the benefit. of public travel. But the

| exercise of this primary right, without just compensa- -

tion, should: not be in derogation of the fundamental o

and traditional. attributes of property. Thus the use of

- - gtreets and highways may be. limited, controlled; and

regulated by ‘public authority in the exercise ofthe police

power whenever and to the extent necessary to pro-

vide for and promote the public safety, peace, health,

*

%

Bee and the general welfare of the people, but never to the

degree that all existing rights of access are destroyed.

8 Some courts have attempted to solve the cul-de-sac

problem hy declaring that only those property owners

. abutting the block on which the obstruction or yaca-

tion occurs are entitled to damages. This seems to us

unrealistic, ‘since property on the same street in the -

nent block may likewise be diminished in value as a

— inconvenienced by circuity of ene

*

re N

pt * 5

Recovery should not depend upon the accident of

location. If an injury different in kind from that suf- .

fered by the general traveling public is required as the

prerequiste to a right of recovery, then a destruction

N of access amounting to a taking of the beneficial use

and enjo t of property should be required. The

rule sho be that the right of ingress and egress

consizts of an adequate and reasonable access from

ee the property fo the ‘street; that it does not extend to

. the full width or the full length of the sreet, or even

to all points upon the street in front of the abutting

property. It · ia sufficient if there is access to a street

that in turn connects with the general street system.

Any omprovement that does not. materially interfere

with such access does no compensable damage.

We are fully aware of the decisions that have

held the depreciation of property in value to be the

criteria of compensable damage but they have never

been applicable where the Commonwealth has been the |

condemnor.

If that criteria is to be adopted, then justice dic-

tates that the right of recovery should not be limited

to those abutting the block on which the obstruction or

vacation occurs. (See cases collected in 49 A. L. R.

330; 92 A. L. R. 639; McQuillin, Municipal Corpora-

tions, 2d ed., Vol. 4 § 1425 et seq.) Furthermore, dim-

5 imition in value as a criteria for a special injury has

been forcefully repudiated by Mr. Chief Justice Stone

in the case of Reichelderfer v. Quinn, supra. -

he rule of adequate and teneonable secesb in fully

and logically. consonant with the unanimous opinion

throughout the country that the inconvenience oo-

~

62 | on

casioned by a necessary circuity of travel, in the ab-

sence of arbitrary action, is one shared in common with

the general public and noncompensable. . It is in full

accord with the philosophy enunciated in the case of

Breinig v. Allegheny County, supra. PET a.

Under this rule, the injury suffered by the peti-

tioners is noncompensable. The cul-de-sac created by

the termination of Bell Road at its intersection with

Ramp A, as authorized by the 1957 plan revision, in

no way denied them access to the general of

streets. Uncontradicted testimony before the

_ of Viewers discloses that to attain to the degree of ac-

cess petitioners had had previously merely entailed, —

with small circuity of travel, the use of existing town-

ship and borough roads instead of a limited access

ramp and two-lane limited access roadway.

The limited access highway is the culmination of

a search for a type of facility that would provide for

the safe, efficient, economical, and expeditious move-

ment of traffic without the attendant hazards of con-

ventional, general service highways. The wide and

proven benéfits derived from their presence make them

eminently desirable in terms of traffic congestion, de-

lays, and motor vehicle accidents.

ives M e

entirely new limited access highway is located and con-

structed, there is no duty to compensate an abutting

landowner: neee

never had. Clarke, The Limited Access Highway, supra

— — —— Prom 2

Lawyer s Viewpoint, supra; Freeways and the Rights or

es 63

Opinion.

sstently been quoted as being the authorities on this

subject (Citations omitted}.

COC SONS

It id' therefore the opinion of this Court that

1. While the physical appropriation of land is no

longer necessary to constitute a “taking” of property,

‘access is as yet a compensable property right within

the meaning of Article I, Section desi Stansted r |

Constitution.

2. The Fifth and Fourteenth amendments of the

United States Constitution and Article XVI, Section 8

of the Pennsylvania Constitution are inapplicable where

the issue is one of access rights and the Commonwealth

is the condemnor. f N

3. The creation of a new limited access highway

vests no right of access in the abutting owners.

4. The Deed of Quitclaim and Release ben

by George Peat, petitioners’ predecessor in title, re-

leased the Commonwealth from all claims arising out

of the 1950 condemnation.

5. The highway plan that was expressly made, a

part of that deed created no contract right in the na-

ture of a private easement to the access point at the

intersection of Bell Road with Ramp A.

6. The barricade at that intersection 3 to

the 1957 plan revision as approved by the Governor and :

authorized by Section 4 of the Limited Access Highway

Act of 1945, P. L. 1108, did not constitute a “taking” of

64 85 i

Opinion.

e enen the meaning of Article I, Section 10 of

the Pennsylvania Constitution.

7. If access is a property right ‘within the mean-

ing of Article I, Section 10, it is only a right to an ade-

quate and reasonable access, which has not heen denied

the petitioners.

mer classed: bak peapetty ‘Mgt elit: the mean-

ing of Article I, Section 10, the creation of a cul-de-sac

is not a compensable injury where the property owner

still retains access to the general system of * and

the condemnor is the Commonwealth. i

9. In the absence of an act of the legislature ex-

pressly assuming liability, there has been no taking“

of property as matter of law.

Wherefore, the exceptions to the Reports of the

3 ee ee

Board of Viewers confirmed. * J