Appeal, No. 108, Jan. T., 1951, from order of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1949, No. 3646, in case of Castle View Burial Park, Inc. v. The Bell Telephone Company of Pennsylvania, et al. Order affirmed.
Abraham Wernick, with him Robert McKinney White, for appellant.
Benjamin O. Frick, with him Sidney W. Frick, for appellees.
Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
Castle View Burial Park, Inc., appellant filed its complaint in the nature of quo warrantor against The Bell Telephone Company of Pennsylvania to determine by what authority the latter claims "to have, use and enjoy the rights, privileges and franchises which it claims, to-wit: The right of eminent domain to take lands of the plaintiff for its use or to do the acts, matters and things hereinabove complained of, or to exercise the powers, privileges and franchises and rights of eminent domain against the plaintiff and its lands, which power, privileges, rights and franchises the plaintiff says have not been granted to and do not appertain to the said corporation and its officer." This
appeal is from the order of the court below sustaining preliminary objections to the complaint.
The complaint averred, inter alia, that Castle View Burial Park, Inc., is a Pennsylvania corporation organized for the purpose of establishing a modern lawn plan burial park; that it is the owner of certain land in Neshannock Township, Lawrence County, Pennsylvania, which land has been dedicated and used since November 14, 1934, as a cemetery and burial ground; that on the above date and for more than 21 years prior thereto the western boundary of said land was the center line of State Highway Route No. 18 which had an established width of 50 feet and that it was paved for 8 feet on each side of the center line thereof; that The Bell Telephone Company of Pennsylvania on November 14, 1934, and for more than 21 years prior thereto owned and maintained along the east side of the highway upon appellant's land a right-of-way for three telephone poles with necessary telephone wires and cables mounted thereon, which poles and equipment are still thus maintained; that in 1935 Castle View beautified its land by planting a line of American elm trees upon its property and without the line of the then existing right-of-way, together with corner posts, piers, gateways and terraces; that in 1946 and 1947 the Commonwealth of Pennsylvania proceeded to widen the aforesaid highway to a width of 60 feet, whereby 5 feet of Castle View's land was taken with the result there was included within the highway a portion of all of the elm trees on its land; that in the widening of the highway the right-of-way of The Bell Telephone Company was taken; that subsequent to said taking the telephone company served upon appellant notice purporting to be in conformity with Section 33 of the Act of 1874, P.L. 73, 15 PS § 2292, that under the authority of such statute it would present to the Court of Common Pleas of Lawrence County a petition requesting approval
and leave to file in the office of the prothonotary a bond whereby it proposed to take by eminent domain a new right-of-way over appellant's land for the construction and maintenance of four poles with wires, cables, cross-arms, and underground dips, in order to guarantee the payment of damages for such taking by the right of eminent domain; that the bond was duly presented to the court at which time appellant filed exceptions and objected to the jurisdiction of the court to hear the matter and the authority of the telephone company to take the land in question by eminent domain proceedings; that the court approved the bond and directed that it be filed but withheld appointment of viewers for a period of thirty days from the date of its order.
Complainant further alleged that the aforesaid order was not a final adjudication of jurisdiction nor of the right of the telephone company to exercise eminent domain; that the damage which will result from the exercise of the right of eminent domain would be irreparable; that the Act of 1874, pursuant to which proceedings were had in the Court of Common Pleas of Lawrence County, had been repealed by the Act of 1933, P.L. 364, Section 1202 (the Business Corporation Law);*fn1 that the land sought to be taken by the telephone company is used and occupied for cemetery purposes and under the Act of 1947, P.L. 424, 15 PS § 2297, may not be taken by a telephone company through the exercise of the right of eminent ...