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RICHARD EDWARDS AND DOLORES EDWARDS v. DEPARTMENT ENVIRONMENTAL RESOURCES (07/11/74)

decided: July 11, 1974.

RICHARD EDWARDS AND DOLORES EDWARDS, OWNERS; RICHARD EDWARDS, SR., RICHARD EDWARDS, JR. AND JOHN EDWARDS, PARTNERS, D/B/A EDWARDS BROTHERS PACKING COMPANY, APPELLANTS,
v.
DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lackawanna County in case of In Re: Condemnation of 80 Acres of Land in Benton Township, County of Lackawanna, Commonwealth of Pennsylvania. Richard Edwards and Dolores Edwards, his wife, owners; Richard Edwards, Sr., Richard Edwards, Jr., and John Edwards, Partners, d/b/a Edwards Brothers Packing Co. and David Jack, No. 579 March Term, 1968.

COUNSEL

Joseph A. Murphy, with him William J. Dempsey and Lenahan, Dempsey & McDonald, for appellants.

Andrew Hailstone, with him James E. O'Connell and Warren, Henkelman, McMenamin & Kreder, for appellee.

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

Author: Crumlish

[ 14 Pa. Commw. Page 372]

This is an appeal by Richard Edwards, Sr. and Dolores Edwards, his wife (condemnees), from a judgment entered in the Court of Common Pleas of Lackawanna

[ 14 Pa. Commw. Page 373]

County awarding condemnees $72,000 in damages for their fee interest in an eighty acre tract of farm land and buildings condemned by the then Department of Forests and Waters under the authority of the Project 70 Land Acquisition and Borrowing Act, Act of June 22, 1964, Spec. Sess., P.L. 131, 72 P.S. ยง 3946.1 et seq. The award increased by $8,000 the amount of damages allocated by the trial judge sitting without a jury to this interest, and confirmed awards to Richard Edwards, Sr., Richard Edwards, Jr., and John Edwards, partners, d/b/a Edwards Brothers Packing Co., of $70,800 for machinery and equipment taken, and $9,500 for a bonus lease of a slaughterhouse operation conducted on four acres of the land condemned. The lower court also confirmed an award of $20,000 to David Jack as the fair market value of a "license" granted him by condemnees to strip what was estimated to be 186,000 cubic yards of topsoil from an eight acre portion of the condemnees' farm over a residual period of four years, with a royalty of $2.00 per truck load.*fn1

Condemnees' principal contention, upon appealing to this Court for a new trial, is that the condemnor's valuation experts as well as the court below erred in failing "to consider the condemnees' interest in the topsoil contract with David Jack in arriving at (their) opinion of market value." Stated differently, may the trier of fact consider as a separate element of damages for the purpose of determining fair market value in an eminent domain proceeding the anticipated profits lost to the condemnee by the condemnation's cancellation of a valuable contract for the removal of topsoil from

[ 14 Pa. Commw. Page 374]

    his land? The simple answer to this is that it would have been improper for either the valuation experts or the court to compute as a separate element of damages the mineral value of land apart from the remainder of the tract, or to capitalize the anticipated profits from a business then conducted on the tract condemned in arriving at fair market value. Schuylkill Navigation Co. v. Thoburn, 7 S & R 410 (1821); Lieberman v. Philadelphia Redevelopment Authority, 8 Pa. Commonwealth Ct. 366, 302 A.2d 915 (1973); Whitenight v. Department of Highways, 1 Pa. Commonwealth Ct. 144, 273 A.2d 752 (1971). "[A]s far as mineral deposits are concerned, the condemnee may not introduce evidence of the number of tons of minerals lost and then multiply that number by some dollar figure such as the market price or the royalty payment." Werner v. Commonwealth, Department of Highways, 432 Pa. 280, 284, 247 A.2d 444, 447 (1968).*fn2

Sgarlat Estate v. Commonwealth, 398 Pa. 406, 158 A.2d 541, cert. denied, 364 U.S. 817 (1960), is a case at point. The condemnee there attempted to establish the value of his land -- upon which had been conducted a gravel and sand quarrying operation ...


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