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BOROUGH BIG RUN v. KATHERINE P. SHAW (01/07/75)

decided: January 7, 1975.

BOROUGH OF BIG RUN, APPELLANT,
v.
KATHERINE P. SHAW, APPELLEE. BOROUGH OF BIG RUN, APPELLANT, V. CARL S. KELLER AND BARBARA KELLER, APPELLEES



Appeals from the Orders of the Court of Common Pleas of Jefferson County in case of In Re: Condemnation of Katherine P. Shaw by the Borough of Big Run, for Alleyway Purposes at No. 68 of 1972 M.D., and In Re: Condemnation of Carl S. Keller and Barbara Keller, by the Borough of Big Run, for Alleyway Purposes at No. 273 of 1972 M.D.

COUNSEL

Marc Katzen, with him A. Ted Hudock, for appellant.

Robert T. Barletta, with him Robert V. Maine, and Maine and Fennell, for appellees, Keller and Keller.

Robert V. Maine, with him Maine and Fennell, for appellee, Shaw.

President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers and Blatt. Judges Kramer and Wilkinson, Jr., did not participate. Opinion by Judge Mencer.

Author: Mencer

[ 16 Pa. Commw. Page 624]

This is another appeal where the litigants do not differ on the applicable law but only on its application to the factual situation which produced the dispute.

The Borough of Big Run decided to open a new street and filed declarations of taking pursuant to the provisions

[ 16 Pa. Commw. Page 625]

    of the Eminent Domain Code, Act of June 22, 1964, P.L. 84, as amended, 26 P.S. ยง 1 -- 101 et seq. The land condemned was to be transformed into a one-way street with a width varying between 10 feet and 12 feet and a length of approximately 451.5 feet, running parallel with Main Street and connecting Water Street and Mitchell Street in the Borough of Big Run.

Two owners of the 10 properties affected by the condemnation filed preliminary objections asserting that the taking was for a private and not a public purpose and that the condemnation was arbitrary and capricious. In addition to the constitutional question, condemnees Keller raised procedural questions which the court below did not discuss or decide because it sustained the condemnees' preliminary objections as they related to the constitutional challenge.

On the south side of the proposed roadway there are four properties. One of these properties encompasses 0.85 acres of land and is presently landlocked. This property is owned by Mr. and Mrs. Floyd A. States and, not surprisingly, the record indicates that Floyd A. States appeared before the Council of the Borough of Big Run in an attempt to have a roadway established between Water Street and Mitchell Street.*fn1 The property owners on the north side of the proposed roadway made no objections to the condemnation.

The law of this Commonwealth is settled that when a borough wishes to open a street or public roadway it has the right to acquire the land necessary to do so by eminent domain. Milford Borough v. Burnett, 288 Pa. 434, 136 A. 669 (1927). However, property ...


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