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KERRY v. COMMONWEALTH. (04/18/55)

April 18, 1955

KERRY, APPELLANT,
v.
COMMONWEALTH.



Appeals, Nos. 56 and 57, March T., 1955, from order of Court of Common Pleas of Butler County, Dec. T., 1953, No. 35, and Dec. T., 1954, No. 50, in case of R. W. Kerry v. Commonwealth of Pennsylvania. Order affirmed.

COUNSEL

Lee C. McCandless, for appellant.

Charles E. Dillon, with him John R. Rezzola, Jr., Thomas C. Evans, Counsel for Department of Highways, Phil H. Lewis, Deputy Attorney General and Herbert B. Cohen, Attorney General, for appellee.

John L. Wilson, for intervenor, appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stearne

[ 381 Pa. Page 243]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

There are two appeals in this case: one from an order of the Court of Common Pleas of Butler County dismissing an appeal to that court and requesting a jury trial from an award of the State Mining Commission assessing damages for support coal required to be left in place in the reconstruction of a State highway, and the other from the award of the State Mining Commission assessing damages for coal required to be left in place for support of said reconstructed highway.

The appellant, Roy W. Kerry, was the owner in fee of eight acres of land underlaid with two veins of coal situate in Muddycreek Township, Butler County, Pennsylvania, fronting along the east side of Old Legislative Route 246, Traffic Route 19 (known as the Perry Highway).

[ 381 Pa. Page 244]

The appellant, Roy W. Kerry, had also leased all the coal under four hundred acres of land owned by the Shidemantles lying immediately north of and adjoining the eight acres owned by Kerry in fee. The Shidemantle property fronted on both sides of the old highway and was also underlaid with two veins of coal. Under the terms of the coal lease Kerry had the right to remove all of the coal upon compliance with certain conditions including the payment to the Shidemantles of a twenty cent per ton royalty for the coal removed. The right of way of the old highway was forty feet in width. This highway was widened to a width of one hundred and twenty feet.

Appellant presented a petition under the Act of June 26, 1931, P.L. 1388, 36 PS 171, its supplements and amendments, praying that viewers be appointed to assess damages for the land and coal taken by reason of the reconstruction and widening of State Highway No. 246. On the same date the court granted the prayer of said petition and appointed viewers to determine said damages.

The Commonwealth of Pennsylvania filed preliminary objections to appellant's petition for viewers on the ground that neither the court nor the board of viewers had jurisdiction to assess damages for coal required to be left in place for support of a State highway, in as much as exclusive jurisdiction of that determination was vested in the ...


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