Appeal from the Order of the Court of Common Pleas of Warren County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way for Legislative Route 1094, Section 2, in Conewango Township and the Borough of Warren. Borough of Warren v. Commonwealth of Pennsylvania, Department of Transportation, No. 76 February Term, 1970.
Benjamin B. Wechsler, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.
John E. Eberly, with him Harper, Clinger & Eberly, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.
[ 23 Pa. Commw. Page 344]
In this eminent domain case, the Commonwealth of Pennsylvania, Department of Transportation (PennDOT) appeals from an order of the Court of Common Pleas*fn1 denying its motion for a new trial.
PennDOT, for highway purposes, condemned 26.83 acres of a 76.34 acre tract owned by the Borough of Warren (Borough), Warren County.
The subject premises were conveyed to Borough in 1934 by deed which, by a restriction, required Borough to use it for the purpose of establishing and maintaining public parks and recreation facilities, a municipal airport,
[ 23 Pa. Commw. Page 345]
and for such other purposes for which Borough could lawfully hold real property. Included was a reversionary interest in grantor's successors and assigns if Borough failed to comply with the terms of the restrictive covenant.
In 1936, Borough commenced operation of a municipal airport on the land. Condemnation halted that use and Borough then used it as a public park, its adjacent property having been used for that purpose. All the property, including the subject of this litigation, is zoned industrial.
On petition of Borough, a board of viewers, in due course, awarded $85,000.00 damages for the taking. No severance damages were awarded. Borough appealed from this award and demanded a jury trial. The jury favored Borough with a verdict of $275,000.00, whereupon PennDOT filed a motion for a new trial. The motion was denied and this appeal followed.
At trial, Messrs. Harry E. Mueller, Jr., and Robert S. Johnson, noting their awareness of the restriction, testified as appraisal witnesses for Borough. Mr. Mueller testified that the highest and best use of the property prior to the taking was as an airport facility. His fair market value estimate was based on comparable sales of industrial property in the vicinity. He testified that the fair market value prior to the taking was $996,000.00 and that the highest and best use of the property after the condemnation was as a Borough park or non-profit industrial park. His estimate of fair market value of the land after the partial taking, and as affected thereby, was $491,000.00. It was his opinion that the restriction would not affect his "before-taking" valuation but that it would have reduced his "after-taking" valuation estimate had he ...