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PENNSYLVANIA POWER & LIGHT COMPANY v. ELMO BALDASSARI (11/13/74)

decided: November 13, 1974.

PENNSYLVANIA POWER & LIGHT COMPANY, APPELLANT,
v.
ELMO BALDASSARI, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lackawanna County in case of In Re: Condemnation of Lands in Ransom Township, County of Lackawanna, Commonwealth of Pennsylvania, Owned by Elmo Baldassari, No. 635 September Term, 1970.

COUNSEL

Joseph L. Mullaney, with him Harvey Gelb and William C. Roeger, Jr., for appellant.

Paul A. McGlone, for appellee.

Judges Crumlish, Jr., Kramer and Wilkinson, Jr., sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 15 Pa. Commw. Page 554]

This is an appeal from an award of damages in an eminent domain proceeding. The award was made by the court below sitting without a jury. The appellant challenges the court below on its findings with regard to three elements: (1) determination of the highest and best use of the appellee-condemnee's land; (2) nature of the estate condemned; and (3) values ascribed to the three segments of land involved.

Appellee-condemnee owned a tract of 603 acres which he testified he planned to develop into a recreational-residential area as a ski resort. Appellant-condemnor's Board of Directors, following appropriate procedures, condemned an easement 325 feet wide across the tract in question. The language of the condemning resolution, in pertinent part and accurately quoted by the court below, provided: "Note 3: 'Resolved, That the Company shall and hereby does condemn and appropriate easements to the extent necessary for said rights of way as aforementioned over and across said lands owned or reputed to be owned by: . . . said rights of way being necessary for this Company's corporate uses, for the construction, operation, renewal, replacement, relocation, addition to and maintenance of the facilities constituting the said transmission lines, including poles, tower, wires and all other necessary appurtenances for the transmission and/or distribution of electricity, on, under, over or across the said rights of way described in Appendix I, together with: (1) the right, as often as necessary, to cut down any trees or brush and to remove any buildings or other things from the said rights of way, (2) the right to cut and/or cut down any trees on the premises adjoining said rights of way which may endanger the safety of, interfere with the use of or be a menace to any facilities or structures which may now or in the future be maintained upon said rights of way, and (3) the right of ingress and

[ 15 Pa. Commw. Page 555]

    egress to, from, upon and over the said rights of way for the construction, operation and maintenance of said lines.'" (Emphasis added.)

The right of way ran in a generally northeast-southwest direction and created what the lower court appropriately treated as three segments of the original tract. The northwest segment contained 84 acres; the center segment, the property over which the easement was condemned, contained 35.8 acres; and the southeast segment was the balance of the property, being 483.2 acres. The Board of View awarded $42,000.00 from which award both parties appealed. Sitting without a jury and after extensive and conflicting testimony as to the highest and best use and as to the values, and with the benefit of viewing the property, the lower court awarded $104,705.00 damages.

The lower court found that the highest and best use of the property was as a recreational-residential area. Although the testimony of appellee-condemnee and his expert witnesses was contested, the court had clear support in the record for this finding. Appellant-condemnor relies heavily on Shillito v. Metropolitan Edison Company, 434 Pa. 172, 252 A.2d 650 (1969). In that case, the Supreme Court sustained the court below when it held that although there had been evidence that the land could be used as a park, a racetrack, for industry, or for housing, there was no evidence that it would be or that there was any need for any of these uses. In the case before us, not only is there competent expert testimony of need, indeed there is competent testimony that the appellee-condemnee was actively and currently planning to so use the property at the time of the condemnation.

The lower court found as a fact that the taking "amounted to a total taking of the 35.8 acres." When the court used the term, "total taking," it meant just that, for it ...


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