Appeal, No. 90, March T., 1961, from judgment of Court of Common Pleas of Allegheny County, July T., 1960, No. 1750, in case of Edward C. Henry et al. v. County of Allegheny. Judgment reversed.
Leonard M. Mendelson, for appellants.
Frank J. Zappala, Jr., Assistant County Solicitor, with him John W. Mamula, Second Assistant County Solicitor, and Maurice Louik, County Solicitor, for Allegheny County, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
The County of Allegheny appealed to the court below the viewers' award of $14,560 in favor of the plaintiffs as damages for a taking by the county of the property of the plaintiffs for highway improvement. The county denied liability on the ground that the statute of limitations was a bar to the plaintiffs' claim. The matter was submitted to the court below on a case stated whereon the hearing judge, adopting the county's contention, entered a compulsory non-suit which the court en banc later refused to take off. From the ensuing judgment in favor of the county, the plaintiffs have appealed, their right so to do having been reserved in the case stated.
The material facts, as set forth in the case stated, disclose that on October 26, 1925, the Court of Quarter Sessions of Allegheny County approved the report of a grand jury which authorized and established Bower Hill Road as a 60-foot right of way running through the townships of Mt. Lebanon, Upper St. Clair and Scott. The plan attached to the grand jury report, which was placed of record, showed the property of the plaintiffs' predecessor in title as abutting on Bower Hill Road for a distance of 100 feet. The plan established center line elevations for the road, inter alia, opposite the easterly and westerly corners of the property here in question and approximately midway between the indicated easterly and westerly elevations.
The plan did not provide for any slope easement over or upon the property.
On October 19, 1926, the plaintiffs' predecessor in title obtained a building permit for the erection of a dwelling house and garage on the property. The roughen phase of the work of constructing the house and garage was completed by December 19, 1926. Pursuant to a contract let by the County of Allegheny on November 16, 1926, a paved cartway 18 feet wide was constructed in 1927 along the center line of the 60-foot right of way. In constructing the cartway, the contractor raised the center line elevations a number of feet higher than established by the recorded plan attached to the grand jury report approved by the Court of Quarter Sessions in 1925.
No petition for the appointment of viewers to assess damages for the taking was ever presented by plaintiffs' predecessor in title.
On January 7, 1958, subsequent to the purchase of the property by the plaintiffs, the Commissioners of Allegheny County adopted a resolution providing for the relocation, widening, altering, opening to variable widths, improving and reconstructing of a portion of Bower Hill Road. This resolution was approved by the Court of Quarter Sessions on January 22, 1958. Referred to in the resolution and attached thereto was a condemnation plan showing an irregular slope easement of 550 square feet on the plaintiffs' property abutting on the 60-foot right of way. Pursuant to this resolution the County widened the cartway of Bower Hill Road from 18 to 44 feet and the Township of Mt. Lebanon entered upon the right of way ...