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GEORGE LEHAN AND SARAH LEHAN v. COMMONWEALTH PENNSYLVANIA (12/16/75)

decided: December 16, 1975.

GEORGE LEHAN AND SARAH LEHAN, HIS WIFE,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of George Lehan and Sarah Lehan, his wife, v. Commonwealth of Pennsylvania, Department of Transportation, No. 10283 of 1974.

COUNSEL

Timothy W. Pawol, Assistant Attorney General, with him Harry C. Jackson, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

J. J. McCluskey, for appellees.

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

Author: Bowman

[ 22 Pa. Commw. Page 383]

George and Sarah Lehan (appellees) own real estate on which their residence is situated in Butler Township, Luzerne County, abutting the south side of Legislative Route 653. Near the western boundary of appellees' property, the Pennsylvania Department of Transportation (appellant) maintains an earthen ditch running in a north-south direction designed to carry runoff water away from the state highway. Originally, the runoff is collected in a drain on the north side of said highway and flows under the roadway through a pipe which empties into the ditch on appellees' property.

For a number of years, appellees' neighbors, whose properties lie on the north side of Legislative Route 653, have been discharging sewage and other waste materials

[ 22 Pa. Commw. Page 384]

    into appellant's drain which by gravity flows onto appellees' property through the aforementioned drainage system.*fn1 As a result, appellees' well has been polluted and other distasteful conditions have been created on their land.

After unsuccessful attempts to persuade appellant to remedy the situation, appellees, in December of 1974, pursuant to the Eminent Domain Code,*fn2 filed a petition for the appointment of a board of view in the Court of Common Pleas of Luzerne County. The petition alleges appellant to have effected a de facto taking of appellees' property by permitting the introduction of sewage into the highway drainage system producing injuries to appellees' land. Appellant filed preliminary objections to the petition.

The preliminary objections were dismissed by the lower court and this appeal followed.

Before us is the question of whether the lower court properly found appellees' petition to state a cause of action for compensable injury by reason of a de facto taking. We reverse.

This case is controlled by our decision in Department of Transportation v. Castillo, 14 Pa. Commonwealth Ct. 22, 321 A.2d 394 (1974). There, as here, the injury was not the immediate, direct, necessary, and unavoidable consequence of the alleged condemnor's conduct. Castillo mandates our holding that a de facto taking entitling a property owner to ...


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