Appeal, No. 125, March T., 1950, from judgment of Court of Common Pleas of Somerset County, 1949, No. 521, in case of Samuel N. Lowry v. Commonwealth of Pennsylvania. Judgment affirmed.
James B. Landis, with him P. G. Cober, for appellant.
Phil H. Lewis, Deputy Attorney General, with him Charles J. Margiotti, Attorney General, T. McKeen Chidsey, Attorney General and Paul E. C. Fike, Associate Counsel, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Ladner, JJ.
OPINION BY MR. JUSTICE LADNER
The Commonwealth, through its Deputy Secretary of Highways, entered into an agreement with A. Kent Miller, identified in said agreement as the owner of certain lands in which were located a mine shaft, tipple and culm, slate or gob pile. The agreement gave the Commonwealth the right to remove this material of the gob pile for use in the repair of State Highway Route No. 55042, Somerset Country, to which said land was adjacent. The Commonwealth's Highway employes removed a portion of the slate or culm from the dump and at the request of Miller filled in the nearby mine shaft.
It appears that Miller and the Commonwealth were both mistaken in their belief that the land on which the slate dump or gob pile and mine shaft were located was the property of the said Miller. Miller was the adjoining land owner but did not own the property in question. The appellant, Samuel N. Lowry, was the real owner.
Plaintiff, claiming to have suffered damages to be measured by the value of the material taken and used by the Commonwealth and the cost of removing the fill, etc., from the mine shaft, first sued the Commonwealth in trespass which action on preliminary objections the learned court below dismissed and we think rightly so because of the absence of statutory authority permitting the Commonwealth to be sued in such an action. The court suggested that the plaintiff's proper remedy was under the Act of 1811, P.L. 145, 5 Sm. L. 228, and The Fiscal Code of April 9, 1929, P.L. 343 (72 P.S. 1 et seq.).
However, instead of pursuing this suggested remedy, the plaintiff filed a petition in the Common pleas court for the appointment of viewers. The viewers upon appointment and after a view and hearing, awarded the appellant $1,800. damages.
The Commonwealth then petitioned the court for a rule to show cause why the appointment of viewers should not be stricken off and from the decree of the court below making absolute this rule and vacating the view proceeding, we now have this appeal.
The appellant argues first that the Act of June 1, 1945, P.L. 1242 (36 P.S. 670-401) confers on the Secretary of Highways all of the rights and powers given to the supervisors and commissioners of townships; second, that the Act of May 1, 1933, P.L. 103, Sec. 1150, 1151 (53 P.S. 19093-1150, 1151) subsequently amended and incorporated in The Second 17 (53 P.S. 19093-1150, 1151) gives the township supervisors the power, "When road material cannot be conveniently obtained by contract at reasonable prices, the supervisors of ownerships may enter upon any land or enclosure within their ...