Appeal from judgment of Court of Common Pleas of Butler County, Sept. T., 1963, No. 125, in case of James R. Williams and Anna M. Williams v. Commonwealth of Pennsylvania, Department of Highways.
William R. Mosolino, Assistant Attorney General, with him Michael R. Deckman, Assistant Attorney General, John R. Rezzolla, Deputy Attorney General, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellant.
Lee C. McCandless, for appellees.
Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.
James R. Williams and Anna M. Williams, his wife (Williams), prior to March 11, 1963, were the owners of a 50 acre (approximately) tract of farm land, improved with a house and several farm buildings, located in Muddycreek Township, Butler County. On March 11, 1963, the Commonwealth of Pennsylvania,
acting through the Department of Highways, in connection with the construction of a new limited access highway, condemned 16.72 acres of the Williams property for the highway right-of-way.*fn1 That portion of the Williams property which was not actually taken by the Commonwealth was divided by the new highway so that approximately 21 acres were on one side and 14 acres on the other side of the new highway. Under 35 acres of the property a vein of mineable coal is located; a portion of this coal underlays the new highway right-of-way while the remaining coal underlays certain portions of the property divided by the new highway.*fn2
On Williams' petition, the Court of Common Pleas of Butler County appointed a board of viewers which, after hearing, made an award to Williams. From this award the Commonwealth took both an appeal and an exception. The exception was based on the fact that the board of viewers had taken into consideration, as an element of damage, the value of the coal underlying the property, an element of damage the ascertainment of which, under the Commonwealth's theory, would lie only in the jurisdiction of the State Mining Commission (Commission). After the court had dismissed the Commonwealth's exception, the case came on for trial before a court and jury. The jury returned a verdict in the amount of $34,506*fn3 in favor of Williams and against the Commonwealth. The Commonwealth's motion for a new trial having been refused, judgment was entered on the verdict and the instant appeal was taken.
Upon this appeal questions involving the jurisdiction of the court below, alleged trial errors and the propriety of the verdict are raised.
Initially, the Commonwealth attacks the jurisdiction of the court below to determine the amount of coal underlying the Williams' property which is necessary to be left in place to provide adequate support, vertically and laterally, for the new highway and the value of such coal. It is the contention of the Commonwealth that the State Mining Commission has exclusive jurisdiction to determine the amount of coal necessary to be left in place for the support of the highway and the value thereof and that the jurisdiction of the board of viewers is restricted to a determination only of the damages, resulting from the taking, to the surface of the land and to coal taken by the Commonwealth which is not necessary to the support of the highway.
Many years ago, in an attempt to insure adequate support for state highways and other Commonwealth lands, easements and rights-of-ways and to protect such highways, etc., from possible subsidence caused by the removal of coal lying thereunder and to further protect the public travelling upon such highways, the legislature created a tribunal called the State Mining Commission to be composed of the president judge of the county wherein the lands, easements or rights-of-way are situated, a member of the Public Utility Commission or an engineer designated by it, the Secretary of Mines or his designated representative, the head of the department, board or commission of the State government owning the lands, easements or rights-of-ways or his designated representative and an engineer designated by the owner or the person entitled to ...