Appeal, No. 52, May T., 1959, from judgment of Court of Common Pleas of Dauphin County, No. 440 Commonwealth Docket, 1957, in case of Israel Rosenblatt et al. v. Pennsylvania Turnpike Commission. Judgment reversed. Ejectment. Before NEELY, J. Adjudication filed finding for plaintiffs and against defendant, exceptions to adjudication overruled and final judgment entered. Defendant appealed.
Henry E. Harner, General Counsel, for appellant.
Morris Wolf, with him Frank A. Sinon, Abraham L. Freedman, and Rhoads, Sinon & Reeder, and Wolf, Block, Schorr & Solis-Cohen, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
The Pennsylvania Turnpike Commission appeals from a conditional judgment in ejectment entered against it by the Court of Common Pleas of Dauphin County in favor of the plaintiffs for the land occupied and embraced by the highway approaches and ramps of the Fort Washington Interchange of the Turnpike's Delaware River Extension.
The plaintiffs' theory, which the court below adopted, is that the land in controversy was never validly condemned by the Turnpike Commission. The court did not, however, award the plaintiffs a writ of possession but attached to the judgment a proviso that the Turnpike Commission should have a period of time, following the adjudication, within which to condemn the property by another condemnation proceeding.
It is apparently the plaintiffs' thought that the damages due for the Commission's taking of the property in question would be determined in the further proceeding on the basis of the current market value of real estate in the locality rather than on the fair market value of the land at the time the Turnpike Commission entered upon it and appropriated it to its own exclusive and permanent use in March, 1953.The Commission's entry was made with the plaintiffs' full knowledge
and without objection or question from them until the filing of their complaint in the instant action in December of 1957. The fact is that the plaintiffs do not want actual possession of the property. What they seek is a determination of the damages due them for the Turnpike Commission's additional appropriation of some 68 acres of their property in March of 1953 on the basis of present day real estate values. In other words, the issue is not whether the plaintiffs should have actual and immediate possession of the land in question but the date as of which the damages for the Commission's taking of the property are to be assessed. That is what is, and all there is, at stake in this controversy.
By deed of December 31, 1949, Israel Rosenblatt, one of the present plaintiffs and a straw party for Philip Seltzer, the real owner and other plaintiff, became the grantee of some 213 acres of land in Upper Dublin Township, Montgomery County. On March 4, 1952, the Pennsylvania Turnpike Commission, acting pursuant to the Act of May 23, 1951, P.L. 335, condemned by formal resolution a portion of the Rosenblatt property. The resolution specified a right of way across the plaintiffs' land, 100 feet on either side of a center line described by courses and distances, for "a total width of 200 feet, together with such additional lands sufficient to provide for slopes of cuts and embankments ...". The drawings attached as exhibits to the resolution showed the taking of a swath 200 feet wide across the Rosenblatt property for an aggregate area of 9.18 acres. The validity of the condemnation of these 9.18 acres has never been, nor is it now, questioned.
The condemnation resolution, in keeping with a further provision of the statute, foreshadowed the Commission's later appropriation of "such additional lands deemed necessary for ramp approaches, maintenance
sheds, gasoline stations, restaurants, ... and other facilities needed for the construction, operation and maintenance of the Turnpike ... as contemplated by the said Act of Assembly, and as shown by said drawings as well as drawings made therefrom or to be made therefrom"; and "to the extent necessary therefor the Pennsylvania Turnpike Commission [thereby] [exercised] the power of condemnation vested in it by the provisions of the said Act of Assembly." The resolution of March 4, 1952, did not specify to what extent or whose lands would be additionally appropriated for the purposes last above specified.
On September 18, 1952, the Turnpike Commission by formal resolution approved and accepted the engineering report for the construction of the Delaware River Extension: See paragraph 8 of the Stipulation of Facts (39a) to which a copy of the resolution is attached and made part thereof as Exhibit "D" (67a). A copy of the engineering report referred to in the resolution is also attached to the stipulated facts as Exhibit "C" (51a et seq.). A drawing, identified as Plate 9 (66 1/2a) and attached to and made part of Exhibit "C", depicted the location and lay-out of the Fort Washington Interchange at the situs of the Rosenblatt property where the turnpike was to make an overhead intersection of transverse Highway Route 731 (future relocated U.S. Route 309). A later plan (Defendant's Exhibit No. 1) (144a), showing in minute detail the land necessary for the construction of the Fort Washington Interchange on the Rosenblatt property was approved by the Turnpike Commission on January 9, 1953, as so attested on the face of the plan by the hand of James F. Torrance, Secretary and Treasurer of the Turnpike Commission. In passing, we note that it has been suggested that the plan (Defendant's Exhibit No. 1) was never formally adopted by the Commission since its approval thereof was signed
only by its Secretary and Treasurer. While it is not of vital importance whether this plan was ever formally adopted by the Commission, as we shall hereinafter see, the suggestion that Torrance's attestation evidenced only his own approval and not the Commission's is without merit. "In the absence of proof to the contrary, the law presumes that a public official's actions were pursuant to proper authority and that the antecedent steps necessary to give validity to his official acts were duly taken:" See McIntosh Road Materials Co. v. Woolworth, 365 Pa. 190, 211, 212, 74 A.2d 384, and cases there cited.
By letter dated March 13, 1953, the Commission mailed to Seltzer a description of his property to the extent that it was being appropriated by the Commission for highway and interchange purposes. The letter requested Seltzer, as he himself avers (22a, 23a), to insert the new property description in the bond securing land damages, which the Commission had theretofore mailed to him on January 13th preceding, as security for the 9.18 acres taken for the highway. The new description embraced a tract of 76.8 acres, more or less, and included the 9.18 acres for the 200 foot wide right of way specified in the resolution of March 4, 1952. Upon the substitution of the new description in the bond, the Commission therewith became entitled to a right of entry upon the property as then described in the bond: see Section 10 of the Act of 1951, supra. Consequently, from March 13, 1953, onward, Seltzer has had the Commission's bond to indemnify him for the damages due for the Commission's appropriation of approximately 76.8 acres, more or less, of his land and, for the same period of time, the Commission has had the exclusive use and possession of the property.
The bond provided, inter alia, that the property description, therein set forth, was subject to revision upon a more accurate survey by the Commission; and,
on March 22, 1954, the Commission mailed to Seltzer a revised final plan showing the property appropriated as being 78.641 acres in fee, .567 acres for channel change, .082 acres for Township Road Route 731, and 1.546 (later corrected to read 1.555), acres for the Philadelphia Electric Company's easement.
The contractor engaged by the Commission to perform the highway construction work entered upon Seltzer's land on March 2, 1953. The new property description not yet having been substituted in the bond, the contractor was ordered off the property (outside the 9.18 acres) by Seltzer's agents on March 10, 1953. On the same day, however, the Chief Counsel of the Right of Way Division of the Commission advised Seltzer's office by telephone that he (the Chief Counsel) had received the final plan of the total area to be taken and would mail the new description to Seltzer, which wad done, as already related. From the time of the substitution of the new description in the bond on March 13, 1953, neither the Turnpike Commission's representatives, its contractor, nor the contractor's employees were ever again interfered with or interrupted in their entry upon, use, and complete appropriation of the described 78 acres, more or less, of Seltzer's land. Except for an acre and a half later added for a utility easement, for two years and eight months before Seltzer petitioned the Montgomery County court for the appointment of viewers, he knew the exact extent of his property which the Turnpike Commission had appropriated. For further confirmation of Seltzer's material knowledge in March, 1953, see Plaintiffs' Exhibit No. 2, 133a, at 134a.
On October 25, 1955, Rosenblatt, acting in his capacity as Seltzer's straw man or agent, assigned to the Girard Trust Corn Exchange Bank, as security for loans to be made, from time to time, to Delaward Valley Industrial Properties, Inc. (a Seltzer concern), all
of his right, title and interest in and to the damages due for the Turnpike Commission's taking of the Rosenblatt (Seltzer's) property. The assignment contained the following specific assurance by Rosenblatt, as the assignor of the damages: "PENNSYLVANIA TURNPIKE COMMISSION, by resolution passed on March 4, 1952, adopted the line of the Delaware River Extension of the Pennsylvania Turnpike and, by said Resolution, condemned and appropriated for the construction, operation and maintenance of such Extension of the Turnpike, certain lands of Assignor lying within such right-of-way, amounting to 76.8 acres, more or less, in fee, and .78 acres, more or less, for an easement, ...".
A few days after this assignment to the Bank by Rosenblatt, viz., on November 4, 1955, the plaintiffs petitioned the Court of Common Pleas of Montgomery County for the appointment of viewers to ascertain and assess the damages due them for the Commission's appropriation of the approximately 78 acres, more or less, of Seltzer's land. Seltzer's petition recognized and averred that "Since the date of the forwarding of [its] Bond, the Pennsylvania Turnpike Commission has entered upon the premises owned by the Petitioner Seltzer and built an interchange for the Turnpike and otherwise exercised complete dominion and control over the said premises." The court appointed viewers, as prayed for, and fixed December 14, 1955, as the time for the view which, however, never took place.
Nothing more having happened in respect of Seltzer's claim for damages for the Turnpike Commission's appropriation of his property for more than two years, the plaintiffs on December 13, 1957, petitioned the Court of Common Pleas of Montgomery County for an amendment of their petition for the appointment of viewers restricting the duties of the viewers to ascertaining and assessing the damages for the Commission's appropriation of only the 9.18 acres if the court should
hold in another action (about to be instituted by the plaintiffs in Dauphin County), that the remaining 68 acres, more or less, entered upon and appropriated by the Commission were never legally condemned. The court granted the prayer of this petition; and, on December 18, 1957, the plaintiffs instituted against the Pennsylvania Turnpike Commission in the Court of Common Pleas of Dauphin County the action of ejectment out of which this appeal arose.
After a trial without a jury, the Dauphin County Court on July 28, 1958, entered a judgment in ejectment in favor of the plaintiffs, upon condition that an opportunity be afforded the Commission to validly condemn the property in question not later than January 1, 1959. It is from the entry of that judgment that the Commission took this appeal.
The plaintiffs' contention that the tract of 68 acres, more or less, of Seltzer's land (exclusive of the 9.18 acres), which the Turnpike Commission appropriated early in 1953, was never validly condemned, is based upon a statement in Gitlin v. Pennsylvania Turnpike Commission, 384 Pa. 326, 333, 121 A.2d 79, where we said that "All that was condemned by the resolution of March 4, 1952, was the two hundred foot strip and such additional ground as was necessary for the natural slopes of the cuts and fills." The validity of the Commission's additional appropriation of a portion of the Gitlin property for the construction thereon of an interchange was neither raised nor passed upon in that case. The legal questions there involved were (1) whether the trial court had erred in admitting testimony as to land values in the community at the time of the Commission's appropriation of the land taken for the turnpike highway by the resolution of March 4, 1952, and at the time of the Commission's appropriation of additional property for an interchange, fourteen months later, by delivering to the Gitlins a revised
plan of the total property taken, and (2) whether the Turnpike Commission was liable for damages for detention measured by a rate per cent.
Viewed in the context in which the above quotation from the Gitlin opinion was employed and in the light of the cognate question for decision, the word "condemned" was used in its factual sense, meaning "appropriated". It is implicit in our opinion in the Gitlin case that both the taking for the highway, as described in the resolution of March 4, 1952, and the subsequent appropriation of additional land for an interchange, according to the revised plan delivered to the property owner, came equally within the intended scope of the resolution's condemnation. No further resolution of condemnation was either contemplated or required by the Act of 1951, so that, while the Gitlin decision recognized that the resolution of March 4, 1952, appropriated definitively only the 200 foot right of way, with slopes for cuts and fills, it did not hold that the land subsequently appropriated by the Commission for necessary appurtenances or facilities according to revised plans did not also come within the purview of the condemning resolution. On the contrary, both appropriations were considered and treated with together as having been condemned by the resolution of March 4, 1952. No one questions that the resolution of March 4, 1952, complied with the statute's requirement so far as the condemnation of the land for the 200 foot highway from the Valley Forge Interchange eastward to the Delaware River was concerned. Why, then, should not the Commission's later appropriation of additional property for the construction of necessary approaches and ramps to the highway (i.e., an interchange), as envisioned by the Act of 1951 and contemplated by the resolution of March 4, 1952, come within the effective scope of the condemnation? Such appurtenances correspond, in their relation to the highway, with the type
of things which this court denominated in Foley v. Beech Creek Extension R. R. Co., 283 Pa. 588, 595, 129 A. 845, as "engineering detail" and not matters outside the condemnation.
In the Foley case, the plaintiff sought an injunction to restrain the taking of his land for a right of way by the defendant railroad company in an exercise of its power of eminent domain, under the General Railroad Act of February 19, 1849, P.L. 79. The Act authorized a railroad company to lay out by resolution a route for a right of way not to exceed 60 feet in width except in the neighborhood of deep cuttings or high embankments. The railroad company's resolution laying out the route did not specify any width for the proposed taking. The lower court dismissed the plaintiffs' bill and, on appeal to this court, it was said, inter alia (pp. 594-595), "As there was no width fixed when the resolution was adopted, the presumption would be the company intended to take the full width permitted by the act, that is, sixty feet for roadbed, with such additional ground as might be necessary for deep cuts, fills, etc., or stations, sidings and turnouts. The definitive discretionary act is the location on the ground of the line, and its adoption by corporate action. Establishing by metes and bounds the necessary width on the various tracts over which the road passes is contemplated by the act as an engineering detail. It is unnecessary, and manifestly so, that corporate action should precede this latter designation on the various properties to be taken." (Emphasis supplied).
A mere glance at the maps, drawings and proceedings taken, as shown by the record in this case, will at once reveal that it was an utter impossibility for the Turnpike Commission, prior to a complete survey of the exact location and lay-out of each of the five interchanges along the entire route of the Delaware River Extension, to accurately put into the condemning
resolution, the "engineering detail" necessary to show the metes and bounds of the additional land necessary for the construction of the interchanges. An interchange had to be so designed as "to provide for the safe and expeditious movement of traffic through the facility with due consideration being given to topography, permissible gradients, and curvature." Stipulation of Facts, Exhibit "C" (56a). In Williams v. Delaware, Lackawanna and Western Railroad Co., 255 Pa. 133, 99 A. 477, where the plaintiff insisted "that the resolution of the board of managers [of the defendant Railroad Company] in locating the new line was defective in that it failed to designate the exact width and area of lands to be appropriated at all points along the line," (Emphasis supplied), this court said, p. 143, "While the proper time to designate the width is when the appropriation is made, failure to do so should not prevent the exercise of the right afterwards within a reasonable time: Jones v. Erie & Wyoming Val. R. R. Co., 169 Pa. 333. It may be impracticable to attempt to exactly define the limits of the land required from a preliminary survey."
The Turnpike Commission's resolution of March 4, 1952, effected a comprehensive condemnation of everything that was necessary for the construction, maintenance and efficient operation of the Delaware River Extension, although the resolution did not definitively appropriate any more property than the 200 foot right of way with slopes for cuts and fills for the highway. But the resolution did expressly spell out that, by virtue of the power of eminent domain which the resolution then avowedly exercised for the purpose, the Commission would, in the future, appropriate such additional lands along the Turnpike right of way as would be necessary for the construction of interchange approaches and ramps, maintenance buildings, gasoline stations, restaurants, etc. The metes and bounds of
the additional appropriations were necessarily to be determined by property descriptions to be furnished the landowners by the Commission according to plans or revisions thereof to be made. Neither the Act nor the resolution of March 4, 1952, which incorporated in its provisions the Act's exact language, in relevant connection, contemplated that another condemnation resolution should be adopted each time the Commission found it necessary to appropriate an additional piece of property, along the defined right of way, for the construction of an essential appurtenance or facility. It will be recalled that, in the Foley case, supra, after stating that "Establishing by metes and bounds the necessary width on the various tracts over which the road passes is contemplated by the act as an engineering detail", this court then pointedly said, "It is unnecessary and manifestly so, that corporate action should precede this latter designation on the various properties to be taken."
The taking of additional property would date from the time the Commission's right of entry accrued, which, by operation of law, would be when the Commission delivered to the landowner its bond to secure payment of the damages due for the additional appropriation. Nor does this conflict with the provision in the Act that the date of the resolution shall be the date of the condemnation. The date of the condemnation remains constant but the date for reckoning the damages for subsequent appropriations (not specifically described but within the purview of the resolution) is necessarily the date of the Commonwealth's right of entry thereupon, if the statutory provision is to be given a reasonable and constitutional interpretation. To antedate to the date of the resolution of March 4, 1952, subsequent appropriations of additional property within the contemplation of the Act and the resolution, might possibly work a deprivation of
a landowner's property rights without due process of law, - a thing which the legislature is to be presumed at not having intended. Section 52(3) of the Statutory Construction Act of 1937, 46 PS § 552(3). The entire damages (i.e., for both the right of way and additional land) are assessable as of two different dates, viz., the date of the resolution's express appropriation of the 200 foot right of way and the date of the Commission's appropriation of the additional property through its permissible entry thereupon: see Gitlin v. Pennsylvania Turnpike Commission, supra. The time for any landowner to object to such additional appropriations is when the Turnpike Commission tenders to him its indemnifying bond or when a new property description is delivered to him for substitution in the bond. See Foley v. Beech Creek Extension R.R. Co., supra. There was never any such objection by Seltzer in the instant case but, actually, quite the opposite.
Assuming, however, for the purposes of this appeal, that the Turnpike Commission's condemnation of the plaintiffs' 68 acres, more or less, for the construction of the Fort Washington Interchange was defective in some particular, nevertheless, the circumstances attending the Commission's appropriation, and exclusive possession thenceforth, of the property in question, legally bound the plaintiffs to the taking as having been validly effected.
It has long been established in this State that whenever a corporate body, which is clothed with the power of eminent domain, enters upon and appropriates for its own uses private property of another and the condemnation, pursuant to which the corporation purported to be acting is defective in some way because of the failure of the condemnor to conform strictly to the procedure prescribed by the statute for a valid condemnation,
the landowner upon receiving notice of the taking may elect to do one of two things, viz.,
(1) He may sue in ejectment. If, however, the entry and appropriation were made with his knowledge and without objection (indisputably the situation in the present instance), then the action is equitable in nature and, if the possessor of the property has made improvements upon the land to such extent as to make it inequitable to evict him, a judgment of conditional ejectment may be entered granting the possessor a reasonable opportunity to validly condemn the land. Oliver v. Pittsburgh V. & C. Railway Co., 131 Pa. 408, 19 A. 47; Wheeling P. & B.R. Co. v. Warrell, 122 Pa. 613, 16 A. 20. In such instance (and this is particularly important here) the damages for the property appropriated will be assessed as of the date of the possessor's original entry. Oliver v. Pittsburgh V. & C. Railway Co., supra.
Or, (2) he may, despite the defective condemnation, treat the appropriation as valid and petition the court for the appointment of viewers to ascertain and assess the damages due him for the value of the property taken. Lawrence Appeal, 78 Pa. 365; Philadelphia Parkway, 250 Pa. 257, 95 A. 429; Barron's Use v. United Railway Company, 93 Pa. Superior Ct. 555, 557-558. Cf. also Gitlin v. Pennsylvania Turnpike Commission, supra.
As a proceeding in ejectment, when the complaining landowner has had knowledge of a putative condemnor's invasion of his property, is equitable in nature, the doctrine of laches, whereof the present plaintiffs were guilty, becomes pertinent and may constitute a bar to an ejectment action. That they knew that the Commission had appropriated 68 acres, more or less, of their property for the Fort Washington Interchange, before the Commission had done any work whatsoever on the property, stands out in the
record and cannot be denied. Seltzer's own averments indisputably so confirm. From the time the Commission delivered to Seltzer on March 13, 1953, the new description of the property being appropriated for the Fort Washington Interchange and the Commission's contemporaneous entry thereon, Seltzer stood by without complaint or protest while the Commission made large and expensive permanent improvements on the property with the result that, by the time Seltzer petitioned for the appointment of viewers on November 4, 1955, the construction of the interchange had been entirely completed to Seltzer's positive knowledge, (see Exhibit "D" at p. 32a) and without complaint or protest from him. His conduct had never indicated other than that he would proceed for the assessment of his damages by a board of view. Indeed, at the time he did so proceed, he was otherwise bound to do so. Just ten days before he petitioned for the appointment of viewers, Seltzer, acting by Rosenblatt, had established a line of credit at the Girard Trust Corn Exchange Bank with an assignment to the bank of his prospective damages from the condemnation as security. To permit him to change his position with respect to the condemnation, to the injury of the Turnpike Commission, would be highly inequitable. A clearer case for the application of the doctrine of laches is not often met with.
For more than two years after the Montgomery County Court, on the plaintiffs' petition, appointed viewers to assess the damages due them for the Turnpike Commission's appropriation of 78 acres, more or less, of Seltzer's land, the petitioners did nothing further in the matter until December 13, 1957, when they petitioned the court for leave to amend their original petition for viewers by adding paragraph 10 thereto. The court allowed the amendment, the effect of which would be to restrict the inquiry of the viewers to the
.18 acres of Seltzer's property, taken for the Turnpike right of way, if, in a proceeding about to be instituted in Dauphin County, that court should hold that the 68 acres, more or less, taken for the Fort Washington Interchange, were never validly condemned. The amendment was clearly without legal justification under the indisputable circumstances of this case. Once a landowner elects to treat an allegedly defective condemnation as valid and acquiesces in a proceeding instituted by the putative condemnor to have his damages assessed by a board of view, he cannot thereafter repudiate the proceeding and sue in ejectment: Hay v. Valley Pike Company, 38 Pa. Superior Ct. 145. Compare Philadelphia Appeal, 364 Pa. 71 70 A.2d 847, where we held that the City of ...