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POWELL APPEAL. (06/25/56)

June 25, 1956

POWELL APPEAL.


Appeals, Nos. 125 and 126, Jan. T., 1956, from order of Court of Quarter Sessions of the Peace of Delaware County, Nov. T., 1953, Nos. 1 and 2, in re Matter of Assessment of Damages ot property of Edgar W. Powell. Order reversed; reargument refused July 31, 1956.

COUNSEL

William Taylor, Jr., with him Holl, Taylor & Holl, for appellant.

Lloyd B. White, Jr., with him Arnold M. Snyder, for appellees.

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

Author: Jones

[ 385 Pa. Page 469]

OPINION BY MR. JUSTICE JONES

These appeals are from an order of the Court of Quarter Sessions of Delaware County confirming an in limine report of a jury of view which determined that the appellant had no right to any damages which might be awarded by the viewers for two separate condemnations of certain land for State highway purposes, to which damages the appellant laid claim. The question reached the court below for decision on the appellant's exceptions to the viewers' in limine report, identic copies whereof were filed in the two proceedings below. The court dismissed the exceptions in an order applicable to both proceedings, and these appeals followed.

[ 385 Pa. Page 470]

The facts are fully and extensively stipulated, those presently material being stated by the learned court below as follows: "On August 3, 1948, Edgar W. Powell, the owner of the real estate in question, entered into a written agreement whereby he gave one Robert Siddall the option to purchase the said real estate, at a price of $1500.00 per acre, within five years. The consideration paid by Siddall was Five Thousand ($5,000.00) dollars. Ten days later, on August 13, 1948, the Governor approved the right-of-way plans for Sproul Road within which part of the property under the option agreement was located. ... On May 5, 1949, Siddall assigned all his right, title and interest in the option agreement to Edward J. Walsh and that assignment was recorded. On May 12, 1950, the Governor approved the right-of-way plans for State Road within which part of the property under the option agreement was located. On March 9, 1953, Walsh exercised his option and he and Powell entered into a written agreement of sale and purchase for the real estate described in the option agreement. Final settlement for the said real estate was made on March 13, 1953 and a deed including the property taken by the State was delivered and accepted on that date. However, Powell and Walsh entered into a separate agreement wherein it was agreed that whether Walsh was entitled to share in the damages resulting from the widening of State and Sproul Roads would be left to further negotiations or to the decision of the State or of the courts."

Powell petitioned the court for the appointment of viewers to assess the damages to the land covered applicable to both proceedings, and these appeals condemnations. In appointing the jury of view, the court's order directed that the viewers determine in limine which of the two, Powell or Walsh, was entitled

[ 385 Pa. Page 471]

    to the damages awardable, if any. The viewers concluded that, since Walsh was the owner of the land at the time of the condemnations, he was consequently entitled to the damages.

The appellant concedes that the ownership of the property covered by the option agreement was not in dispute but maintains that he reserved to himself the damages to the land resulting from the condemnations by virtue of paragraphs 1 and 8 of the option agreement which read as follows: "1. Optionee shall pay the sum of Fifteen hundred Dollars ($1500.00) for each acre of land purchased by him, the land included in the right of way lines of State Road, Sproul Road and Woodland Avenue, as established by the Commonwealth of Pennsylvania or the Township of Springfield at the time when the optionee buys or agrees to buy the tract or portions thereof, shall not be included in the computation of acreage. No commission is payable by the Owner to the Optionee ... 8. Upon the execution by Optionee of an agreement of sale to ...


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