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BORING v. METROPOLITAN EDISON COMPANY (10/09/69)

decided: October 9, 1969.

BORING
v.
METROPOLITAN EDISON COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas of York County, Jan. T., 1966, No. 192, in case of Paul L. Boring et ux. v. Metropolitan Edison Company.

COUNSEL

John S. McConaghy, with him Samuel B. Russell, Samuel S. Laucks, Jr., and Ryan, Russell & McConaghy, and Laucks & Monroe, for appellant.

J. Ross McGinnis, with him Gilbert G. Malone, and Stock and Leader, for appellees.

Bell, C. J., Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Cohen, Mr. Justice Roberts and Mr. Justice Pomeroy concur in the result. Mr. Justice Jones took no part in the consideration or decision of this case.

Author: Eagen

[ 435 Pa. Page 516]

This is an appeal by the Metropolitan Edison Company (hereinafter Condemnor) from the judgment entered in the court below upon a jury's verdict awarding $25,000 in damages to Paul L. Boring and Mary M. Boring (hereinafter Condemnees) in an eminent domain action.

[ 435 Pa. Page 517]

On November 22, 1965, the Condemnor condemned a right of way across the unimproved 43.46 acre tract of the Condemnees for the purpose of erecting thereon an electrical transmission line. The Condemnees' land is located in close proximity to Pinchot State Park, a resort attracting large numbers of patrons to its water and park facilities. Along the road boundaries of the Condemnees' property, a small number of lots have been sold, on which modest homes are erected. Although the tract is otherwise unimproved and essentially agricultural in nature, a grass airplane landing strip had been created on it by the York County Sky Divers Association in 1965 by virtue of a written lease to it from the Condemnees. The lease was dated December 14, 1964, and ran for a period of 20 years, at a rental of $1.00 for the first year; $2,400.00 for the second year; $3,600.00 for the third year; $4,800.00 for the fourth year; and $5000.00 for the fifth and each succeeding year. The strip was used by members of the lessee in the summer and fall of 1965 for the taking off and landing of airplanes in pursuit of their sport of sky diving. The lease also reserved the joint use of the landing strip to the lessors and anyone else who might erect homes on the remaining portion of their property. The right of way in question was taken by the Condemnor by a resolution adopted on March 12, 1965, effective as of November 22, 1965. It (the right of way) contained 2.94 acres, and consisted of a strip 200 feet wide running for a distance of approximately 639 feet roughly across the center of the Condemnees' land and almost directly bisecting the landing strip.

By letter dated October 29, 1965, the Sky Divers Association terminated its lease because of the imminence of the condemnation which would make impossible the use of the land leased as an airstrip.

[ 435 Pa. Page 518]

At the trial, both sides presented expert testimony by two valuation experts. The Condemnees' experts testified that the highest and best use of the property was as a sky park or sky port development because of the uniqueness of the terrain and the advantage of its location near Pinchot State Park between York and Harrisburg. A sky park was described as a type of residential building development on which substantial homes are erected from and to which the residents may fly their own planes, using the adjacent landing strip communally.

Taking into consideration this highest and best use, the general potential of the land for air-related uses and the lease to the Sky Divers, the Condemnees' experts gave their opinion of the market value of the property before condemnation as being $116,000 and $114,792 and the value thereof after condemnation as $32,000 and $27,867 respectively with consequent damages of about $86,000. The testimony of the Condemnor's experts was that the highest and best use of the property both before and after the condemnation was as a site for mobile homes or a trailer park with the possibility of the sale of lots for cottage-type homes. Their opinion of market value before condemnation was $26,000 and $28,200 and the market value after condemnation was fixed at $22,600 and $24,600 respectively, resulting in damages of $3800 or $3600.

The Condemnor first contends that the evidence presented by the Condemnees was inadequate as a matter of law to support a finding by the jury that the highest and best use of the land involved prior to condemnation was as a sky park or sky port, in that it failed to establish a need or demand for such purposes in the locality involved. In regard to the issue of need or demand in the locality, the Condemnor cites Shillito v. Metropolitan Edison ...


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