Appeal from the Order of the Court of Common Pleas of Butler County, in case of Francis H. Porter and Katherine E. Porter, his wife, Owners; and Robert C. Sechan, Jr., trading and doing business as Sechan Limestone, Lessee v. Commonwealth of Pennsylvania, No. A.D. 89, September Term, 1964.
Thomas J. Dempsey, with him Armand Cingolani, Jr., and Cingolani & Cingolani, for appellant.
David A. Johnston, Jr., Assistant Attorney General, with him Guy S. Mamolito, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellee.
President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Judge Manderino did not participate in the decision. Opinion of Judge Rogers in Support of Affirmance. President Judge Bowman and Judge Wilkinson join in this opinion.
After argument before the Court en banc, the Court being equally divided, the order of the lower court is hereby affirmed.
Opinion of Judge Rogers in Support of Affirmance:
In Porter v. Commonwealth, 419 Pa. 596, 215 A.2d 646 (1966), an earlier round of this protracted litigation, the Supreme Court held that the damages to appellant Sechan's interest in the minerals in five tracts of land owned by others might not be tried in one action separate from the actions required to ascertain the injuries to tracts in which the minerals lay. This it held followed from Section 507(a) of the Eminent Domain Code, Act of June 22, 1964, P.L. 84, Article V, 26 P.S. § 1-507(a), which we here quote in full: "The claims of all the owners of the condemned property, including joint tenants, tenants in common, life tenants, remaindermen, owners of easements, and all others having an interest in the property, and the claims of all tenants, if any, of the property, shall be heard or tried together and the award of the viewers or the verdict on appeal from the viewers shall first fix the total amount of
damages for the property, and second, apportion the total amount of damages between or among the several claimants entitled thereto."
The trial below was for the purpose of awarding damages due for the partial taking of a tract of land containing about 43 acres owned by Francis H. Porter and Katherine E. Porter, his wife. The appellant, the owner of a nearby limestone quarry operation, had, about three years before the condemnation, entered into an agreement with the Porters by which for the sum of $25 per month and the promise of royalties he obtained the right for a period of five years*fn1 to extract minerals from the property. Therefore, as decided by the earlier Porter case and as required by Section 507 of the Code, the jury was called upon to fix the total amount of damages for the property as defined by the surface and second, to apportion the total ...