Appeal, No. 34, April T., 1957, from judgment of Court of Common Pleas of Butler County, Dec. T., 1956, No. 272, in case of Dean E. Moyer et ux. v. Commonwealth of Pennsylvania. Judgment affirmed.
Lee C. McCandless, for appellants.
John L. Wilson, with him John R. Rezzolla, Jr., Chief Counsel, Department of Highways, Frank E. Roda, Assistant Attorney General, Department of Highways, and Thomas D. McBride, Attorney General, Commonwealth of Pennsylvania, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 183 Pa. Super. Page 334]
We are here concerned with the question whether the Commonwealth of Pennsylvania is liable for consequential damages resulting from the improvement of a State highway within a borough. The lower court held that there was no such liability, and judgment was accordingly entered in favor of the Commonwealth.
[ 183 Pa. Super. Page 335]
See Brewer v. Commonwealth, 345 Pa. 144, 27 A.2d 53. The owners of the property involved have appealed.
Dean E. Moyer and Olivdene V. Moyer, his wife, appellants, are the owners of a house and lot in the Borough of Evansburg, Butler County, fronting seventy-five feet on old State Highway Route 78. By virtue of plans approved by the Governor of Pennsylvania on December 7, 1955, this highway was relocated. It was moved away from appellants' lot some thirty feet, and a fill varying from nine to fifteen feet was made. No land was taken. Access to appellants' property was accomplished by filling in a portion of the old highway and making a steeply declining approach from an intersecting street, which approach ends in a cul-de-sac. The borough council refused to assume liability for property damage resulting from the highway construction. Alleging that the value of their property had been diminished, appellants requested that viewers be appointed. The viewers reported that the Commonwealth was not liable because no land had been taken. An appeal to the Court of Common Pleas ensued. The Commonwealth moved to dismiss the appeal on the ground that the issue was entirely one of law. The court subsequently decided the case as though exceptions had been regularly filed to the viewers' report. No procedural question has been raised.
Appellants suggest that "a property right was taken" for which they are entitled to compensation under Section 10 of Article 1 of the Constitution of the Commonwealth. They argue "that although no physical part of their property was taken, that by depriving them of their ingress and egress and by building a fill in front of their property, they lost a property right which is included in the above Constitutional provision". Appellants' principal contention, however, rests upon the premise that a borough, as a municipality
[ 183 Pa. Super. Page 336]
under Section 8 of Article 16 of the Constitution of the Commonwealth, is liable for consequential damages, hence "had this been done by the Borough of Evansburg the appellants would have been entitled to damages". Upon that foundation appellants endeavor to base the proposition that "the Statutes amount to an assumption by the Commonwealth of the Borough's liability". They also attempt to make a distinction between the word "taking" and the word "damages", asserting that the use of the ...