Appeal from order of Court of Common Pleas of Butler County, Sept. T., 1964, No. AD 89, in case of Francis H. Porter, Katherine E. Porter, his wife, and Robert C. Sechan, Jr., trading and doing business as Sechan Limestone, v. Commonwealth of Pennsylvania.
Thomas J. Dempsey, with him Armand Cingolani, Jr., and Cingolani & Cingolani, for appellant.
George R. Specter, Assistant Attorney General, with him John R. Rezzolla, Chief Counsel, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Concurring Opinion by Mr. Chief Justice Bell. Mr. Justice Eagen joins in this Concurring Opinion.
This appeal arises from an order entered by the lower court dismissing a petition which in effect requested the court to consolidate in one action the claims of all parties having an interest in certain properties condemned by the Commonwealth.
Appellant, Robert C. Sechan, Jr., trading and doing business as Sechan Limestone, is the owner of certain leased mineral interests and concomitant rights in five contiguous tracts, each tract separately owned in fee by different and independent parties. Each of the five interests of appellant were created by separate and distinct leases, and these interests are used by appellant in the integrated operations of mining, processing and
marketing limestone. It is the contention of appellant that his rights under the laws of Pennsylvania and the Constitution of the United States require the requested joinder.
The lower court properly found that § 507 of the Eminent Domain Code applies to this case. That section reads: "The claims of all the owners of the condemned property, including joint tenants, tenants in common, life tenants, remaindermen, owners of easements, and all others having an interest in the property, and the claims of all tenants, if any, of the property, shall be heard or tried together and the award of the viewers or the verdict on appeal from the viewers shall first fix the total amount of damages for the property, and second, apportion the total amount of damages between or among the several claimants entitled thereto." P. L. 84, No. 6, § 507, 26 P.S. § 1-507 (1964).
This section makes mandatory the joinder of all owners of interests in the condemned property for the purpose of apportionment of damages resulting from the taking. Thus, damages for all interests must be adjudicated in one proceeding. Appellant, by relying on cases giving certain lessees of minerals a fee simple therein, in effect argues that "property" should be defined by the area of his ownership. We believe, however, that the legislature intended the term to mean that area as defined by the fee in the surface, as recorded.
The prior Act (1937) required only joinder of the owner and lessee, so that other interests in a property could be severed and valued in a single action with similar interests in other parcels. The Act of 1964 requires joinder in one action of all interests in a property and appellant's interpretation would have us add to their number all ...