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JAMES W. LUKENS v. U. G. I. CORPORATION (03/18/75)

decided: March 18, 1975.

JAMES W. LUKENS, JR., AND JAMES W. LUKENS, JR., ASSIGNEE,
v.
U. G. I. CORPORATION, APPELLANT



COUNSEL

Louis G. Feldmann, A. J. Ciotola, Feldmann & Ciotola, Hazelton, for appellant.

Pasco L. Schiavo, Hazelton, for appellees.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts and Nix, JJ., concur in the result. Manderino, J., filed a dissenting opinion.

Author: O'brien

[ 461 Pa. Page 467]

OPINION OF THE COURT

On July 10, 1963, the Pennsylvania Department of Public Highways condemned a portion of the premises owned by Carl and Ruth Peterson for the purpose of widening Route 29 (now Route 93), upon which their premises abutted. The Petersons were compensated. On June 28, 1965, the Department of Public Highways granted to U.G.I. Corporation (appellant) a permit to install a gas pipeline in the right-of-way abutting the entire length of the Peterson property. On November 28, 1967, the Petersons conveyed an undivided one-third interest in their property to James W. Lukens, Jr. (appellee), an undivided one-third interest to Robert W. Ellis and Naomi B. Ellis, and an undivided one-third interest to Samuel Flumen. In April of 1971, appellee and his co-owners in the former Peterson property, entered into an agreement of sale with the Mobil Oil Corporation. Pursuant to the sales agreement, appellee began grading operations on the property and in so doing removed certain earth banks and resloped the property, thus exposing the pipeline of appellant, which, when laid in 1965, had conformed in depth restrictions as provided for by P.U.C. regulation. Mobil, when notified of the exposed gasline, made settlement with appellee to provide for the pipeline's relocation. In 1972, appellee filed a suit in equity seeking damages from appellant and compensation for the cost of relocating the pipeline. The chancellor took testimony and entered a decree nisi granting appellee's requested relief. Exceptions were filed and dismissed, and a final decree entered. This appeal followed.

The chancellor and appellee take the position that the instant case is controlled by the decisions of Pittsburgh Nat. Bk. v. Equitable Gas Co., 421 Pa. 468, 220 A.2d 12

[ 461 Pa. Page 468]

(1966) and N. 2 at 475, 220 A.2d 12; and Shinzel v. Bell Telephone Co., 31 Pa. Super. 221 (1906). In our opinion, the above cases, while correct, are not controlling in the instant case. In both of the above cases, it was held that an abutting landowner could recover damages if the additional servitude, such as a gasline, imposed an additional burden or obstructed the landowner's use of his abutting property. However, in both of the decisions the Courts were speaking of an additional burden created at the time the servitude was created, rather than the abutting landowner changing the contour of his land so as to make the servitude a burden of his abutting property, as was done in the instant case.

Since this appeal is not controlled by Equitable Gas Co., supra, and Shinzel, supra, we must now deal with appellee's second argument in support of his position. Appellee argues that his right of ingress and egress from his abutting property requires that the gasline be moved at appellant's expense. We do not agree. While appellee has the right of ingress and egress and the right to use his property for its greatest benefit and value, this does not mean that if he changes the contour of his land so as to make the gasline an impediment to ingress and egress, appellant must pay for its relocation. Appellant originally installed the gasline in accordance with government regulations and could not have been expected to bury the line at such a depth so as to eliminate the possibility of its ever being an impediment to ingress and egress, if appellee changed the contour of his land.

Lastly, appellee argues that 15 P.S. Section 3554, which provides:

"In all cases where any dispute shall arise between such corporations and the authorities of any borough, city, township or county, through, over or upon whose highways, or ...


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