Appeals from the Orders of the Court of Common Pleas of Bucks County in cases of County of Bucks v. .800 Acres of Land in the Township of Middletown, County of Bucks, State of Pennsylvania, Joseph Wingert and Philip Dougherty, Trustees, Tax Map Parcel 22-76-3, D.B. 1820/1122, 12/26/65, No. 3968 May Term, 1969; and County of Bucks v. 1.673 Acres of Land in the Township of Middletown, County of Bucks, State of Pennsylvania, Thomas P. Carney and Teresa M. Carney, his wife, Owners, Tax Map Parcels 22-76-1 and 22-76-2, No. 3967 May Term, 1969.
John M. McClure, Assistant Solicitor, with him Peter A. Glascott, Solicitor, for appellant.
William F. Schroeder, with him C. David Krewson, and Stuckert, Yates & Krewson, for appellees.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers and Blatt. Opinion by Judge Wilkinson, Jr. Judge Crumlish, Jr. dissents.
[ 32 Pa. Commw. Page 450]
This is an appeal from a decision of the Court of Common Pleas of Bucks County awarding delay compensation to the appellees from the date of the filing of the declaration of taking. We reverse, finding that the lower court erred in holding that possession by the appellant County of Bucks was not necessary to effectuate a taking of the property involved.
This condemnation proceeding arises under the provisions of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-101 et seq. (Code). It involves two parcels of land in Bucks County, one containing 1.673 acres of land (Carney), and the other possessing .800 acres (Wingert/Dougherty, trustees). While these two cases were never formally consolidated by the court below, they have always been treated as one case, and were consolidated by this Court for the purposes of argument. We shall continue to consider them as involving one litigation.
The County of Bucks, by a declaration of taking filed on August 12, 1969, acquired the perpetual right, power, privilege and easement occasionally to overflow, flood and submerge these two properties, in anticipation of constructing a recreation and flood control dam. After the declaration of taking was filed, petitions for the appointment of Boards of View were docketed on September 16, 1969. Hearings were held on January 26 and March 8, 1973, and the report and award of the Board was docketed on November 8, 1973. These awards gave the appellees delay compensation calculated from August 12, 1969, the date of the filing of the declaration of taking. Payment of the estimated just compensation was made on January 14, 1974.
Both landowners appealed from the awards of the Boards of View, and a jury trial was then held in the Court of Common Pleas of Bucks County. On September 10, 1975 verdicts were returned in the amount of
[ 32 Pa. Commw. Page 451]
$33,000 for the Carney property, and $10,000 for the Wingert/Dougherty, trustees, property. The issue of delay compensation was separately considered by the court below, which held in an order dated December 11, 1975, that delay compensation be paid to the condemnees from the date of the filing of the declaration of taking. The County of Bucks then appealed that decision to this Court.
The owners of the two tracts of land involved in this litigation have at all times remained in possession of their land. The provisions of Section 407 of the Code, 26 P.S. § 1-407, were not invoked by either party prior to the payment of the estimated just compensation.*fn1 Thus, the sole issue presented in this case is whether the condemnees are ...