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CONDEMNATION PROPERTY THOMAS W. GOLDING AND NANCY D. GOLDING v. TOWNSHIP NEW BRITAIN (02/15/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 15, 1978.

CONDEMNATION OF THE PROPERTY OF THOMAS W. GOLDING AND NANCY D. GOLDING, HIS WIFE, AT 28 WILSON AVENUE, CHALFONT, PA. ET AL. THOMAS W. GOLDING AND NANCY D. GOLDING, HIS WIFE, APPELLANTS
v.
THE TOWNSHIP OF NEW BRITAIN, APPELLEE

Appeal from the Order of the Court of Common Pleas of Bucks County in case of Condemnation of the Property of: Thomas W. Golding and Nancy D. Golding, his wife, at 28 Wilson Avenue, Chalfont, Pa., said Parcel of Land being known as Bucks County Tax Parcel, Nos. 7-7-32 and 7-7-32-1 by the Board of Supervisors of New Britain Township, for Drainage Purposes, No. 75-3747-06-4.

COUNSEL

David M. MacFarlan, with him Larry B. Maier, and Charles S. Wilson & Associates, for appellants.

Albert L. Blackman, Jr., with him George M. Bush, and Hartzel and Bush, for appellee.

Judges Crumlish, Jr. and Wilkinson, Jr., sitting as a panel of two. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 33 Pa. Commw. Page 636]

Before us is an appeal from a decision of the Court of Common Pleas of Bucks County dismissing a petition for the appointment of viewers.

In May, 1972, the Township of New Britain (Township/Appellee) approved subdivision plans for the Blyden Square Housing Development (Development), including plans for the construction of storm and drain sewers. The Development is located on the Township's eastern border and abuts the property of Thomas and Nancy Golding (Appellants) located in the Borough of Chalfont. The approved drainage plans provided for the drainage of storm water toward Appellants' property but made no provisions for containment of the water or for merging the drainage system with other systems beyond the Township's boundary. Consequently, upon completion of the Development, the drainage system was left open-ended at the Township's border resulting in the discharge of storm water onto Appellants' property.

[ 33 Pa. Commw. Page 637]

Appellants petitioned the court below*fn1 for the appointment of viewers pursuant to Section 502(e) of the Eminent Domain Code*fn2 alleging the following: (1) that the Township has caused and approved the collection of drainage of a concentrated flow of water upon their premises; (2) that no declaration of taking has been filed by the Township; and (3) that the Township has done substantial damage and injury to their premises, has imposed a servitude upon it and has effected a partial taking thereof.*fn3

The Township responded by filing preliminary objections stating that the action complained of could not constitute a de facto taking because the Township was not an entity clothed with the power of eminent domain, i.e., without authority to condemn property beyond its geographic boundaries.

The court below sustained the Township's preliminary objections and dismissed Appellants' petition.*fn4 We affirm.

[ 33 Pa. Commw. Page 638]

The term "de facto" taking was defined by our Supreme Court in Griggs v. Allegheny County, 402 Pa. 411, 414, 168 A.2d 123, 124 (1961), rev'd on other grounds, 369 U.S. 84 (1962), wherein it wrote: "A 'taking' occurs when the entity clothed with the power of eminent domain substantially deprives an owner of the beneficial use and enjoyment of his property." (Emphasis added.)

The Township is governed by The Second Class Township Code (Code), Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65101 et seq. Section 1503 of the Code, 53 P.S. § 66503, authorizes the Township supervisors to acquire drainage rights-of-way by the exercise of eminent domain. Section 1504 of the Code, 53 P.S. § 66504, requires the Township supervisors to make the necessary provisions for carrying drainage facilities beyond the limits of the Township and authorizes the supervisors to enter into contracts with other municipalities, corporations or persons to effectuate that mandate.

It is well established that the exercise of the power of eminent domain is necessarily in derogation of the right to hold property and that the authority to exercise that power should be strictly construed. See Municipal Authority of Zelienople Borough Appeal, 431 Pa. 306, 245 A.2d 451 (1968). It is also well settled that a municipal corporation is a creature of the sovereign

[ 33 Pa. Commw. Page 639]

    and possesses only those powers granted in express words, and those necessarily or fairly implied or incident to the powers expressly granted. See In Re: The Incorporation of the Borough of Valley-Hi, (1976, filed December 27, 1977.)

The Code, 53 P.S. § 65101 et seq., does not explicitly grant extraterritorial condemnation powers to the Township, nor can they by necessary implication be implied. The Township is without authority to condemn land beyond its borders and therefore is not an entity "clothed with the power of eminent domain" beyond its borders. Accordingly, it may not effect a de facto taking.

Order

And Now, this 15th day of February, 1978, the order of the Court of Common Pleas of Bucks County is affirmed.

Disposition

Affirmed.


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