Plaintiffs filed exceptions to the viewers' report and an appeal to the Court of Common Pleas. The Court of Quarter Sessions confirmed the viewers' report. Appeals by the plaintiffs to the Pennsylvania appellate courts were unsuccessful. In Re Private Road in Monroeville Borough, 204 Pa.Super. 552, 205 A.2d 885 (1964); Marinclin Appeal, 204 Pa.Super. 552, 205 A.2d 885 (1964); Marinclin Appeal, 205 Pa.Super. xli. A jury trial in the Court of Common Pleas is pending.
Plaintiffs allege that the taking has left their property "in a highly disfigured condition and greatly reduced its value." They ask this federal court to declare the Act of 1836, as amended, unconstitutional in the circumstances, to order defendant to vacate the private road, and to compensate them for damages done to their land, together with costs.
The defendant filed a Motion to Dismiss on the grounds that (1) the court lacks jurisdiction in that the amount in controversy does not exceed $10,000; (2) the Complaint fails to state a claim upon which relief can be granted; and (3) the Pennsylvania statute involved is constitutional under Pennsylvania and Federal law.
In our opinion this court has jurisdiction. The Complaint raises a federal question under the Constitution of the United States,
and alleges damages in excess of $10,000. Nothing appears which would require this court to find that the Complaint was not filed in good faith. It is true that the viewers awarded to plaintiffs $5,500 damages, but the plaintiffs' appeal to the Court of Common Pleas on the question of damages is pending, and a real estate expert has sworn in his affidavit, attached to plaintiffs' brief, that in his opinion the taking of the private road in close proximity to plaintiffs' residence will depreciate the value of their property in excess of $10,000. Thus the amount of compensation to which the plaintiffs will ultimately be entitled remains to be established by a jury in the Court of Common Pleas. No one can say presently that the actual amount, as finally determined, will not be in excess of $10,000.
However, we think the Motion to Dismiss should be granted for the second and third reasons.
Unquestionably the Act of 1836
has been held to be constitutional under Pennsylvania law.
Such construction must be accepted by this court in judging whether the Act conforms to the Constitution of the United States.
At the time that the Constitution of Pennsylvania was adopted, there was in force a statute which authorized the taking of land by eminent domain to establish a private road, leading from the land of an individual to the nearest highway, when he had no means of ingress and egress in any other manner. See: Act of 1735 cited in Palairet's Appeal, 67 Pa. 479 (1871). The Act of 1836 was a substantial reenactment of the pre-Constitution Act.
As appears in Judge Montgomery's opinion (204 Pa.Super. at p. 555, 205 A.2d at p. 886):
"The rights of the individual involved in these proceedings are not the exclusive consideration. 'On the contrary, it is the connection of these private ways with public highways, or with places of necessary public resort, together with the implied right or license of the public to use them, at least in going to and from the premises of the person laying them out, quite as much, if not more, as the consideration of purely individual rights, that have won for these acts judicial recognition of constitutionality.' Waddell's Appeal, 84 Pa. 90, 93-94 (1877)."