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TANTALAS v. COMMONWEALTH (05/02/58)

May 2, 1958

TANTALAS
v.
COMMONWEALTH, APPELLANT.



Appeal, No. 245, March T., 1957, from judgment of Court of Common Pleas of Beaver County, June T., 1955, No. 189, in case of John Tantalas et ux. v. Commonwealth of Pennsylvania. Judgment affirmed.

COUNSEL

John Alan Conte, with him John R. Rezzolla, Jr., Chief Counsel, Department of Highways, Frank E. Roda, Assistant Attorney General, Thomas D. McBride, Attorney General, and Conte and Courtney, for appellant.

George W. Lucas, with him James B. Ceris, for appellees.

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

Author: Musmanno

[ 392 Pa. Page 316]

OPINION BY MR. JUSTICE MUSMANNO

It is the position of the appellant Commonwealth in this case, which involves eminent domain proceedings, that once it has introduced in evidence a highway plan approved by the Governor - which plan reveals that no ground was taken from the person whose property adjoins the highway under construction or improvement - no further factual inquiry is in order. Thus, the Commonwealth contends that the verdict which was awarded the property owners by the jury should be reversed and judgment n.o.v. entered, because the highway plan shows that the highway was confined within the existing right-of-way. The contention must fail. A highway plan, even approved by the Governor of the Commonwealth, is still only a piece of evidence subject to every inquiry and testing which the laboratory of a court room affords.

[ 392 Pa. Page 317]

The plaintiffs here, John and Catherine Tantalas, own land in New Sewickley Township, Beaver County, which yields fruit and vegetables which they sell to travellers on Legislative Route 78 known as Sunflower Road which passes by their property. The owners, in addition, derive a profit from travellers who stop at their tavern and retaurant, also on the land. In 1954 the Commonwealth undertook to raise, widen, and resurface various sections of Sunflower Road, including a stretch of 104.2 feet bordering the Tantalas property. The plaintiffs claim that the Commonwealth, in effecting this improvement, sliced away three and one-half feet of their property. The Board of Viewers, duly summoned, awarded the plaintiffs $2500, and the Commonwealth, even as private individuals who sometimes do not grasp the purport of an advantage, asked for a jury trial in the court of common pleas. This time the Commonwealth was set back $4,000, and it has appealed to this Court, maintaining, as already stated, that it did not take any of the plaintiffs' property and presenting the official highway plan in assumed conclusive proof of that fact.

A plan is a paper containing words, sketches, and lines. If the person or persons who write the words, produce the sketches, and draw the lines, make mental errors, those errors do not cure themselves by being transferred to paper. A mathematical or engineering inaccuracy gains no purging impeccability because repeated several times in different forms. The Commonwealth declares in its brief that "the 'placing' of ground, soil or fill to the extent of three and a half feet, outside of the undisputed right-of-way line, as to plaintiffs' property was not a taking arising out of an eminent domain proceeding but a mere trespass for which recovery cannot be had in this proceeding."

[ 392 Pa. Page 318]

But the plaintiffs disputed this conclusion at the trial. Edward L. Ewing, engineer called by the plaintiffs, testified as follows: "Q. Now, with reference to that center line going in a northerly direction onto his property, was the highway moved over onto his property on the plaintiffs' property? A. Yes, three and a half feet. ... Q. Mr. Ewing, you say all along the front of the building there was three and a half feet that was taken by the State? A. That's right." (Emphasis supplied).

Thus, it became a question for the jury as to whether the Commonwealth's or the plaintiffs' witnesses were more correct in appraisal of the physical facts. And the jury found ...


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