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CONDEMNATION LAND AND PROPERTY G. WILLIAM AND LILLIAN E. JACOBS (12/05/80)

decided: December 5, 1980.

CONDEMNATION OF THE LAND AND PROPERTY OF G. WILLIAM AND LILLIAN E. JACOBS, ETC. G. WILLIAM JACOBS AND LILLIAN E. JACOBS, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Condemnation of the Land and Property of G. William & Lillian E. Jacobs, situate 320 W. Rose Valley Road, Wallingford, Pennsylvania v. Nether Providence Township, 214 Sykes Lane, Wallingford, Pennsylvania. Condemnation for Drainage Purposes, No. 2316 of 1971.

COUNSEL

Leonard J. Tripodi, Tripodi & Toal, for appellants.

John W. Wellman, Petriken, Wellman, Damico and Carney, for appellee.

Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 55 Pa. Commw. Page 143]

This is an appeal from an order of the Court of Common Pleas of Delaware County dismissing for failure to state a cause of action under the Eminent Domain Code (Code)*fn1 appellants' petition for the

[ 55 Pa. Commw. Page 144]

    appointment of a jury of view for an alleged de facto taking by appellee Nether Providence Township (Township).*fn2 We affirm.

Since 1969 appellants' property has been subject to serious and excessive drainage problems attributable to a change in the natural topography of the locality caused by the erection of a high school facility, a retirement home, and several single residential homes, all being "upstream" from appellants' property. The Township issued building permits for all of the structures. Drainage for the residential subdivision and for the retirement home was not examined by the Township since the local regulations did not require that Township approval be given. However, because the Pennsylvania Department of Education required a municipal engineer's approval regarding drainage for the proposed high school, a Township engineer passed upon and approved such plans and also suggested an expansion of the retention pond.

The question on appeal is identical to that addressed by the court below: whether the complained of acts of the Township are sufficient to demonstrate an actionable exercise of the Township's power of eminent domain.

[ 55 Pa. Commw. Page 145]

In order for a condemnee to prove that a de facto taking has occurred, he must show exceptional circumstances which have substantially deprived him of the use and enjoyment of his property. Department of Transportation v. Lawton, 50 Pa. Commonwealth Ct. 144, 412 A.2d 214 (1980). A condemnee must show that an entity, clothed with the power of eminent domain, exercised that power and that the damages sustained by the condemnee were the immediate, necessary and unavoidable consequence of that exercise. Harborcreek Township v. Ring, 48 Pa. Commonwealth Ct. 542, 410 A.2d 917 (1980).

Appellants submit that an actionable exercise of the Township's power of eminent domain has been stated and draw upon Hughes v. Elizabeth Borough, 343 Pa. 175, 22 A.2d 726 (1941), where our Supreme Court held that a municipality may be liable for a compensable injury where it tacitly approves the regrading and resurfacing of a road and/or supplements the improvements, resulting in the flooding of a plaintiff's property. Appellants also rely upon Greger v. Canton Township, 41 Pa. Commonwealth Ct. 20, 399 A.2d 138 (1979). In that case, flooding of the plaintiffs' property which was found to constitute a de facto taking, was caused by the Township permitting the installation of septic tanks on properties too small to accommodate them, improperly maintaining streets bordering upon and bisecting plaintiffs' tract, and opening ditches to channel sewage effluent from ...


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