Appeal from order of Court of Common Pleas of Mercer County, March T., 1966, No. 22, in re condemnation of lands of Raymond F. Keifer et al. in Hickory Township.
William J. Joyce, with him Martin E. Cusick, and Cusick, Madden, Joyce & McKay, for appellants.
George R. Bristol, Assistant Attorney General, with him John R. Rezzolla, Deputy Attorney General, and William C. Sennett, Attorney General, for Commonwealth, appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Roberts.
This is an eminent domain proceeding.
Appellants own a parcel of land located in Mercer County on the south side of East State Street, which has been part of the state highway system since 1911. In 1964, E. State Street was widened from 33 feet, 16.5 feet of which was south of the center line, to 70 feet, 35 feet of which is south of the center line. The board of viewers, appointed by the Court of Common Pleas of Mercer County on appellants' petition, determined that the appellants are not entitled to damages because the 18.5 additional feet south of the center line had been dedicated to the public for highway purposes. On appeal, the Court of Common Pleas of Mercer County agreed with the board of viewers that there had been a dedication which barred appellants from collecting direct damages and dismissed the appeal, but referred the case back to the board of viewers to assess consequential damages, if any. This appeal followed.
The dedication relied upon to deny appellants direct damages arises from the recording of two plans for "Hermitage Acres," which includes appellants' land. These plans show E. State Street as having a right of way 100 feet wide, 50 feet of which is south of the center line. The original plan was recorded in Mercer County on April 4, 1923, and a revised plan was recorded on December 31, 1929. Inasmuch as more than 21 years elapsed between the time when the plans were recorded and the time when the highway was widened and the land offered for dedication was first used by the public, the appellants contend that acceptance of the offers to dedicate*fn1 is barred by the Act of May 9,
, P. L. 173 § 1, 36 P.S. § 1961. The complete text of that act and its title, which may be considered in resolving any ambiguity, Act of May 28, 1937, P. L. 1019, § 54, 46 P.S. § 554, is as follows: "An Act relating to unused streets, lanes and alleys. Section 1. Be it enacted, &c., That any street, lane or alley, laid out by any person or persons in any village or town plot or plan of lots, on lands owned by such person or persons, in case the same has not been opened to, or used by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened, without the consent of the owner or owners of the land on which the same has been, or shall be, laid out."
The court below held that this statute does not apply to land dedicated for the widening of an existing state highway, relying on State Road, 236 Pa. 141, 84 A. 686 (1912), in which this Court, speaking through Mr. Justice Moschzisker (later Mr. Chief Justice Moschzisker), said: "The statute does not in terms include property given to widen an old street in existence at the time of the dedication of the land, as in this case, nor is there any intimation therein of a purpose to do so." Id. at 145, 84 A. at 687. The lower court considered this dictum and doubted its correctness, but concluded that it controlled the case and should be followed. Passing the question of whether the statement from State Road, supra, is dictum or an alternative holding, we believe that it interprets the statute correctly and that the statute does not apply in this case for two reasons.
First, the statute provides that any "street, lane or alley" offered to the public which is "unused" or "not opened to, or used by, the public" within twenty-one years of the offer, cannot thereafter be accepted. ...