# Petition for Writ of Certiorari — Babcock Boulevard Land Co. v. Pennsylvania > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0872%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1965 - **Citation:** 382 U.S. 906 ## Text “IN RR: PETITION OF RED JACKET COMPANY, - NC., FOR. THE APPOINTMENT OF VIEWERS TO 5 * || tice Suprome Court, U.S. 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 e 32 . ˙— A eee 8 * 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. * * us 8 ra * . — . —— — * ae 3. eee | “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 (. * * 0 * 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. | aaa we 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 hiss > | ; ° . 54 r ~ j — * re —S— 4 St : } : * 5 N l 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 * oo 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 * | 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. * * ¢ 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 ; 8 2 7 a 0 0 _ Reasons Relied . n Writ. REASONS RELIED ON FOR ALLOWANCE of ‘WRIT E 2 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). — ee 0 ee p — 1 2 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0872%3A1. Public record. Not legal advice.