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SHORT v. COMMONWEALTH (03/29/72)

decided: March 29, 1972.

SHORT, ET AL.
v.
COMMONWEALTH



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Highways, of Right of Way, for Legislative Route 376, Section 14, in West Mifflin Borough (Harry V. Ackerman and Kathryn A. Ackerman, his wife) No. 2884, July Term, 1967. Appeal transferred November 11, 1971, from the Superior Court of Pennsylvania to the Commonwealth Court of Pennsylvania.

COUNSEL

John W. Mamula, for appellants.

Andrew L. Weil, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 5 Pa. Commw. Page 92]

This is an appeal from a decree below dismissing exceptions to a report of viewers and from judgment entered on the report. The exceptions raised a legal question fundamental to the inquiry. See Lakewood Memorial Gardens Appeal, 381 Pa. 46, 112 A.2d 135 (1955).

[ 5 Pa. Commw. Page 93]

The appellants are the owners of residential properties abutting a state highway. Their lots are at a higher elevation than the roadway. The Commonwealth, acting by its Department of Highways, desiring to widen the paved cartway, appropriated a strip of land from each of the appellants' lots varying from 15 to 25 feet in width. No substantial change of grade was effected. The berm as well as the cartway of the old road was widened and new slopes formed within the strips of frontage taken from the appellants' lots.

Section 210 of the State Highway Law, Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. ยง 670-210, provides that the approval of highway plans by the Governor ". . . shall be considered to be the condemnation of an easement for highway purposes from all property within the lines marked as required for right of way and the condemnation of an easement . . . of support or protection from all property within the lines marked as required for slopes." In the instant case the plans showed only lines marked as required for right of way. No lines marked as required for slopes appeared thereon and, as noted, the slopes required for support and protection were constructed within the required right of way. Hence, the Commonwealth condemned and was obliged to compensate the appellants for an easement for highway purposes for the land taken to the limit of the required right of way line.

The appellants contended unsuccessfully below and repeat here that they should be compensated now not only for the land taken but also for such additional land as may in the future be necessary for support and protection if the Commonwealth should, as under the instant taking it may, widen the cartway to the full limit of the required right of way line and if in so doing it fails to provide support and protection to their property by the construction of a wall. While this statement

[ 5 Pa. Commw. Page 94]

    of appellants' contention is, we believe, an accurate paraphrase, their argument is so extraordinary that we are impelled to quote from their brief. It states:

"Since neither the condemnation plan or viewers plan show any area taken for slope easement, we must conclude that 'all the property within the lines marked as required for right-of-way' was a ...


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