Appeal from order of Court of Common Pleas of Delaware County, No. 5424 of 1965, in re condemnation of right of way Legislative Route 1018, section 4, Lower Chichester Township.
Norman Snyder, with him Joseph W. deFuria and Albert E. Smith, for appellant.
George R. Specter, Assistant Attorney General, with him Robert W. Cunliffe, Assistant Attorney General, John R. Rezzolla, Deputy Attorney General, 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 Eagen. Dissenting Opinion by Mr. Justice Cohen.
This condemnation case presents an interesting question of first impression in the appellate courts of Pennsylvania.
The facts were stipulated below and may be summarized as follows:*fn1
The appellant, the Interstate Cemetery Company, has owned and operated a cemetery at the same location in Lower Chichester Township, Delaware County, since the year 1904. In 1965, the cemetery consisted of approximately 230 acres of land, all of which had been divided, laid out and plotted into graves and lots.
In May 1965, the Commonwealth of Pennsylvania, through its highway department, condemned for highway construction a portion of appellant's cemetery. That portion condemned has no bodies interred therein and the nearest interment to the land included in the proposed taking is 76 feet distant.
A Declaration of Taking was duly filed, as required by the provisions of the Eminent Domain Code, Act of June 22, 1964, P. L. 84, 26 P.S. § 1-402 et seq. (Supp. 1965). Preliminary objections filed by the appellant challenging the power of the Commonwealth to take the land involved were dismissed in the court below. This appeal followed.
The Act of April 5, 1849, P. L. 397, § 1, 9 P.S. § 8, provides: "It shall not be lawful to open any street, lane, alley or public road through any burial ground or cemetery within this commonwealth, any laws, heretofore
passed to the contrary notwithstanding: Provided, That this section shall not extend to the ...