Appeal, No. 206, March T., 1949, from judgment of Court of Common Pleas of Westmoreland County, Aug. T., 1948, No. 272, in case of Isaac F. Koontz v. Commonwealth of Pennsylvania. Judgment affirmed.
D. J. Snyder, Jr., Associate Counsel, with him A. Frank Steiner, Special Counsel, Phil. H. Lewis, Deputy Attorney General and T. McKeen Chidsey, Attorney General, for appellant.
James Gregg, with him Portser, Gregg & McConnell and Raymond R. Cassidy, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE JONES
The question here involved is whether an alleged taking by the Commonwealth of a portion of the plaintiff's property in connection with a certain highway improvement presented a question of fact for the jury or a question of law for the court on the basis of the evidence adduced at trial. It is the Commonwealth's contention that, according to the official highway plan approved by the Governor, none of the plaintiff's property was taken for the improvement and that, consequently, the plaintiff is not entitled to damages. The learned trial judge overruled the defendant's point for binding instructions and submitted the case to the jury which returned a money verdict for the plaintiff. The
amount of the verdict is not questioned. In due course, the court below entered judgment on the verdict and the Commonwealth took this appeal. The matter assigned for error is the lower court's refusal of the defendant's motion for judgment n.o.v.
The well-settled principles of law on which the appellant predicates its argument are not to be gainsaid, but they do not rule the issue disclosed by the record in this case. It is, of course, not open to dispute that, before the Commonwealth can be made to answer, in the present state of the statute law (Sec. 304 of the State Highway Law of June 1, 1945, P.L. 1242), for damages in cases of highway improvement, there must have been a taking of the complaining property owner's land (Brewer v. Commonwealth, 345 Pa. 144, 145, 27 A.2d 53); that such taking depends upon the condemnation which, in turn, is effected by the Governor's approval of the official plan for the highway involved (Sec. 210 of the State Highway Act of 1945, supra, and Lubrecht v. Commonwealth, 350 Pa. 47, 51-52, 38 A.2d 242); that the extent of the condemnation must be ascertained from the plan approved by the Governor for the purpose (Burkholder v. Commonwealth, 347 Pa. 478, 480, 32 A.2d 745); and that a trespass outside the right of way, condemned for the highway purpose, is not a compensable element of damage in a proceeding for the ascertainment of damages due to the Commonwealth's exercise of its power of eminent domain (Culver v. Commonwealth, 346 Pa. 262, 264-265, 29 A.2d 531).
The question here is as to what the official highway plan approved by the Governor actually reveals. The plan was received in evidence as Commonwealth's Exhibit B and shows the legal right-of-way line on the side of the plaintiff's property as running through the middle of two sixteen-inch-square gate posts erected on the plaintiff's property along the highway in question. A witness for the Commonwealth, whose qualifications
were unquestioned, so testified. In fact, he had gathered the date in the field from a survey of the proposed highway improvement which he transmitted to the Highway Department's planning engineers for use in the preparation of the official plan (Exhibit B). The same witness also made a draft of the plaintiff's property which was offered in evidence as Commonwealth's Exhibit C. On that plan, the property line was shown as running two to two and three-eighths inches back from the front side of the square gate posts. A third plan, prepared by one of the Highway Department's planning engineers (also a witness for the Commonwealth), was received in evidence as plaintiff's Exhibit No. 2 and showed the square gate posts to be entirely on the plaintiff's property. Obviously, the official plan was not conclusively self-revealing. It required interpretation by qualified engineers or surveyors as to the precise situation, which its drawings portended, on the ground; and the competent witnesses in such connection were the ...