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HENCKEN ET UX. v. BETHLEHEM MUNICIPAL WATER AUTHORITY (03/20/50)

March 20, 1950

HENCKEN ET UX.
v.
BETHLEHEM MUNICIPAL WATER AUTHORITY, APPELLANT



Appeal, No. 49, Jan. T., 1950, from judgment of Court of Common Pleas of Carbon County, Oct. T., 1939, No. 3, in case of Henry R. Hencken et ux. v. Bethlehem Municipal Water Authority. Judgment affirmed.

COUNSEL

Daniel L. McCarthy, with him Alan S. Loose, for appellant.

George A. Shutack, with him Russell L. Mervine, for appellees.

Before Maxey, C.j., Drew, Linn, Stern, Stearne and Jones, JJ.

Author: Linn

[ 364 Pa. Page 409]

OPINION BY MR. JUSTICE LINN

This appeal is by the defendant, Bethlehem Municipal Water Authority, from a judgment in eminent domain proceedings for the condemnation of part of a large tract of land, owned by plaintiffs, in Towamensing Township, Carbon County, for the construction of defendant's Wild Creek Dam. On June 8, 1939, appellant adopted a resolution appropriating plaintiff's land "for the purpose of erecting and constructing [a] dam, lay pipe lines, and constructing and erecting other buildings for the operation of a water system..." and filed a condemnation bond which was approved by the court.*fn1 The area taken contained 40 acres and 42 perches, part of plaintiff's larger tract of 47 acres. Plaintiffs' dwelling house and outbuildings were not taken. On June 8,

[ 364 Pa. Page 4101945]

, a jury of view was appointed which filed a report on August 28, 1946, awarding $27,500 to the plaintiffs. The Authority excepted on the ground that the viewers "did not file a report within three months of December 5, 1945, as required by Section 2828 of the Third Class City Law of June 23, 1931, P.L. 932 [53 PS 12198-2828]."*fn2 The court sustained the exception and set aside the report on November 8, 1946.

On April 15, 1947, following an abortive appeal to this Court, and pursuant to a petition for viewers, the court again appointed a jury of view. This jury reported on December 16, 1947, and awarded $26,500. Both parties appealed from this award. After issue framed, the case was tried in October, 1948, resulting in a verdict of $42,500 in favor of plaintiffs. The Authority now appeals from judgment on the verdict and contends that (1) the statute of limitations prevents recovery; (2) there was error in rulings during the examination of expert witnesses. No objection is made to the charge of the court except to the refusal to charge as requested in appellant's 25th point for charge, a matter not now requiring discussion.

1. The defense of the statute of limitations is based on failure of the first viewers to report in the term of court during which they were ordered to report or the omission to obtain an order extending the time for the report. When that report was set aside, six years had elapsed since the Authority entered on the land; because of the expiration of that period, appellant now contends that the petition for the viewers appointed April 15 1947, was filed too late.

[ 364 Pa. Page 411]

Section 2828 of The Third Class City Law directed that "the viewers shall report to the court, within three months from the date of their appointment, unless the time for so doing shall be extended...." As the first report was not filed in accord with the Act, the court rightly sustained the exceptions and set aside the report. The plaintiffs had appealed to the common pleas from the report of the viewers and to this Court from the order sustaining the exceptions. The appeal to this Court was premature and failed because the order was ...


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