Appeal, No. 29, March T., 1962, from order of Court of Quarter Sessions of Erie County, May T., 1959, No. 377, and Court of Common Pleas of Erie County, Feb. T., 1961, No. 219, in re appointing of viewers to assess damages to property of W. R. Covert and Velma Covert, his wife, in North East Town. Order affirmed.
James P. Bryan, with him Bryan, Joslin and Bryan, for appellants.
Robert H. Chase, with him Gabriel A. Bifulco, and Chase, Hanes, Bifulco & Mangan, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. JUSTICE KEIM
This appeal originates from an eminent domain proceedings. The lower court decided that the sellers of the subject property rather than the buyers were entitled to the damages. The buyers have appealed to this Court.
For sometime prior to the 28th day of June, 1956, John Rychick and Rita Rychick, his wife (the appellees) were the owners of a 46 1/2 acre parcel of land in Erie County. This farm was used to grow grapes, peaches, cherries and other type of fruit. Just prior to the aforesaid date, John Rychick and his wife (the appellees) began negotiations with W. R. Covert and Velma M. Covert, his wife, (the appellants) for the sale of this farm. These negotiations finally ripened into a conveyance on the above mentioned date, June 28, 1956, and also germinated the seed which developed into this appeal.
For the sake of a better understanding of this opinion we will hereinafter refer to the Rychicks (appellees) as the sellers and hereinafter refer to the Coverts (appellants) as the buyers.
The entire legal difficulty in this case stems from the interpretation and application of the following clause which was contained in the aforementioned deed: "Also excepting and reserving any and all damages arising from any and all lands appropriated within
the right of way by the Commonwealth of Pennsylvania and/or its agents for the construction of a four lane super highway of an approximate width of two hundred feet (200); it being hereby agreed and understood that in the event construction of said highway shall not be commenced within two (2) years from the date hereof, this exception and reservation shall become null and void and of no effect."
It is an undisputed fact that for some time prior to the conveyance there existed on this farm certain survey stakes which designated the probable location of a new thruway or turnpike. It was also established that a new ...