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CAVALIER APPEAL. (07/30/62)

July 30, 1962

CAVALIER APPEAL.


Appeals, Nos. 110, 111 and 112, March T., 1962, from judgment of Court of Quarter Sessions of Westmoreland County, Oct. T., 1959, No. 91, in re petition of Sarah Cavalier, Verna Cavalier and Westmoreland Clay Products Company for appointment of board of viewers. Judgment affirmed.

COUNSEL

Gilbert J. Helwig, with him John D. McIntyre, Thomas G. Taylor, and Reed, Smith, Shaw & McClay, for appellants.

Frank Edward Roda, Special Assistant Attorney General, with him Robert W. Cunliffe, Assistant Attorney General, John R. Rezzolla, Jr., Chief Counsel, Pennsylvania Department of Highways, and David Stahl, Attorney General, for Commonwealth, appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Cohen

[ 408 Pa. Page 296]

OPINION BY MR. JUSTICE COHEN

Appellants are the owners and lessees of certain property in the Borough of South Greensburg. In 1958, the Department of Highways of the Commonwealth of Pennsylvania (Department), under authority of the limited access highways Act of 1945, May 29,

[ 408 Pa. Page 297]

P.L. 1108, 36 P.S. ยงยง 2391.1 to 2391.15 condemned a portion of their property for the construction of a limited access highway.

In order to make a level highway in the uneven terrain, the road surface of the proposed highway, as it crossed appellants' property, was to be elevated on pillars so that the actual highway surface would be some thirty to thirty-five feet above the ground level. The only physical occupancy of the surface of the land was by the twelve pillars which served as support. The highway was constructed in accordance with these plans.

Subsequently, after receipt of a letter from the district engineer of Department imposing certain restrictions upon their use of the property, appellants ceased entirely the operation of the brick plant which they had conducted on the property in question. The plant has not functioned since that time.

In 1959, appellants filed a petition for the appointment of viewers to assess damages. After a hearing, the board of view filed a report awarding the sum of $110,000 as damages resulting by reason of the taking of the property. Appellants took exceptions to the report of the viewers to the court below, which, after argument, dismissed them. From this decree, appellants have taken an appeal to this court.

The crucial question herein raised concerns the nature and the extent of the interest taken by the Commonwealth. Appellants take the position that Department took an easement on all property within the ground lines of the right-of-way. In asserting this view, appellants point to the fact that while the condemnation plans clearly show the construction over the brick plant was to be a viaduct, there is no reference on the demolition plans to the ...


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