Appeal, No. 25, Jan. T., 1959, from judgment of Court of Common Pleas of Lackawanna County, Sept. T., 1956, No. 1, in case of Henry A. Schuster et al. v. Pennsylvania Turnpike Commission. Judgment affirmed.
Joseph P. Kane, with him John A. Morano, Hubert Earle, Prall B. Roads, Assistant Counsel, and Henry Harner, Chief Counsel, for Pennsylvania Turnpike Commission, appellant.
William J. Oliver, with him Paul H. Price, J. H. Oliver, and Homanich, Dutka and Yavorek, for appellees.
Before Jones, C.j., Musmanno, Jones, Cohen and Mcbride, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
In this eminent domain proceeding two issues are presented: (1) were any property rights taken?; (2) was the jury verdict excessive?
The Pennsylvania Turnpike Commission (herein called Commission), in connection with the proposed construction of the Northeast Extension of the Turnpike,
on January 18, 1954, by an appropriate resolution, condemned certain land located in Lackawanna County for the purpose of a 200 foot wide right of way. The actual construction of a section of the Turnpike across this land did not commence until May 1956. On June 4, 1956 Henry A. Schuster and Pearl E. Schuster (herein called Schusters), claiming certain property rights belonging to them in the land had been "taken" by the commission's condemnation, petitioned the Court of Common Pleas of Lackawanna County for the appointment of a board of viewers which board was duly appointed. The commission then petitioned the court to join as a party in the proceeding one Robert Y. Moffat, trading as Moffat Coal Company (herein called Moffat) alleging that Moffat was the title-holder of the land in question. This petition was refused by the court below.*fn1
On February 26, 1957, after hearings, the board of viewers awarded Schusters damages in the amount of $47,652.80. Exceptions filed to this award by both parties were dismissed in a written opinion by President Judge T. LINUS HOBAN. The commission having requested a jury trial, the matter came on for trial before Judge MICHAEL J. EAGEN and a jury and resulted in a verdict in favor of Schusters in the amount of $67,000. From a judgment entered on that verdict the commission took this appeal.
The commission initially contends that the Schusters did not have any property rights or interest in the land which was "taken" by the condemnation. An understanding of the commission's position in this respect requires a review of the factual background surrounding the ownership of the land in question, a background well summarized in the opinion of the court below.
"As of December 31, 1938, the complete legal title in fee in the lands involved was in the Glen Alden Coal Company. This included ownership of the surface of the land and everything underneath. On that date, the owner corporation entered into a written contract with Robert Y. Moffat as an individual giving him the right to mine and remove the coal minerals underneath the surface of the land. On December 31, 1941, the rights of Robert Y. Moffat under this contract were assigned in writing to the Continental Archbald Coal Company, a corporation owned and controlled by the Moffat family. On July 1, 1953, the Glen Alden Coal Company conveyed all of its interest in the land (surface and subterranean rights) to Robert Y. Moffat, as an individual.
"In May 1946, Earl Lamb, general manager for all of the Moffat interests, and the plaintiff, Henry A. Schuster, entered into an oral agreement whereby the latter was given the right to enter upon the land, mine and remove the coal underneath for sale purposes; the Moffat interests were given the right to purchase the coal for a stipulated price if they so wished, otherwise to be paid a tonnage royalty for all coal removed; the area to be mined was limited and defined under the agreement and approximated 65 acres. (While the record fails to show it this type of arrangement for individuals to mine and remove the coal from lands owned by the larger coal companies is typical and frequent in the hard coal fields). The contract could not be cancelled by Moffat before exhaustion of the coal except for good reason and cause. This arrangement between the Moffat interests and the plaintiff was known to the Glen Alden Coal Company and carried on over the years with its tacit approval.
"Shortly after this agreement was reached, the [Schusters] entered upon the ...