Appeal, No. 2, Jan. T., 1962, from decree of Court of Common Pleas of Montgomery County, June T., 1960, No. 49, in case of Walter F. Schwab v. The Burgess and Town Council of the Borough of Pottstown. Decree affirmed.
Louis Sager, for appellant.
C. Edmund Wells, with him Ronald H. Reynier, and Wells, Campbell, Reynier & Yohn, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE COHEN
This is an appeal from the refusal of the court below, sitting in equity, to grant a preliminary injunction restraining appellee borough from proceeding with the condemnation of land needed for the improvement of the Pottstown municipal airport under a federal and state air program.
Appellant's property is adjacent to the airport and lies in the path of the clear zone approach area of the runway. In order to obtain flight rights over appellant's land, the borough, under its powers of eminent domain, condemned a portion of the property. The gravamen of appellant's complaint is that instead of taking a fee simple interest, the borough condemned a
lesser estate - an air flight aviation easement - in violation of the relevant statutory provisions.*fn1
We are convinced that the court below acted properly in refusing to grant the preliminary injunction. As we recently held in Perloff Bros., Inc. v. Cardonick, 406 Pa. 137, 176 A.2d 413 (1962), a preliminary injunction will not issue unless: (1) the rights of the plaintiff are clear; (2) there is an urgent necessity to avoid injury which cannot be compensated for by damages; and (3) greater injury will be done by refusing it than in granting it. None of the necessary elements are present here. In essence, what appellant fears, and consequently seeks to enjoin, is that a taking of an easement instead of a fee simple interest will result in lessened compensation for his property by a jury of view. He is enlisting equity's powers to aid him in obtaining the highest possible amount of condemnation damages.
Needless to say, equity is an improper forum for the relief sought by appellant. In Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491 (1955), we made it indisputably clear that a court sitting in equity has no jurisdiction to determine whether there has been a taking, or to assess and award damages for such appropriation. We held therein that relief is obtainable only by resorting to the procedure designated by the legislature - an eminent domain proceeding. By such a proceeding, every property owner may determine whether there has been a taking, the nature of the interest taken, and the right to and amount of compensation. To the same effect as Gardner v. Allegheny County are Creasy v. Lawler, 389 Pa. 635, 133 A.2d ...