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COMMONWEALTH PENNSYLVANIA v. 21.1 ACRES LAND WASHINGTON TOWNSHIP (08/20/81)

decided: August 20, 1981.

COMMONWEALTH OF PENNSYLVANIA, ACTING BY AND THROUGH THE PENNSYLVANIA GAME COMMISSION, APPELLANT
v.
21.1 ACRES OF LAND IN WASHINGTON TOWNSHIP, BUTLER COUNTY, AND HOMER RENICK AND PATRICIA RENICK, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Butler County in case of Commonwealth of Pennsylvania, Acting by and through Pennsylvania Game Commission v. 21.1 Acres of Land in Washington Township, Butler County, Pennsylvania, and Homer Renick and Patricia Renick, his wife, No. A.D. 72 June Term, 1973, Book 100, Page 278.

COUNSEL

Stuart M. Bliwas, Assistant Attorney General, with him, Harvey Bartle, III, Attorney General, for appellant.

Lee C. McCandless, McCandless, Krizner & Price, for appellees.

President Judge Crumlish and Judges Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 61 Pa. Commw. Page 384]

In this eminent domain appeal the Commonwealth of Pennsylvania, acting by and through the Pennsylvania Game Commission (Commission), seeks reversal of a judgment of the Court of Common Pleas of Butler County granting delay compensation to property owners Homer and Patricia Renick (condemnees). Since in the proceedings before our Court and those below the Commonwealth has acted by and through the Commission, we will, for the sake of facility, treat the Commission as being the condemning authority. The judgment here contested was entered incident to the Commission's taking of an interest in land owned by the condemnees.

In March 1973, after the Commonwealth had erected a dam in Washington Township, Butler County,

[ 61 Pa. Commw. Page 385]

    the Commission filed a Declaration of Taking for a flood easement in approximately 21.1 acres of land owned by the condemnees. The interest taken by the Commission was a perpetual right, power, privilege and easement" to occasionally "overflow, flood and submerge" the land in connection with the dam. The Declaration of Taking reserved to the condemnees the right to use and enjoy the land to the extent that such use would not interfere with the easement condemned.

After the condemnees unsuccessfully challenged the Commission's right to take less than a fee simple absolute, the Commission petitioned for a board of viewers.*fn1 In October 1977, the viewers awarded the condemnees $2500 in damages and delay compensation. Not satisfied with the viewers' award, the condemnees had a trial de novo in the Court of Common Pleas of Butler County. In May, 1978, a jury returned a verdict of $15,600 as just compensation for the taking. The lower court molded the verdict to $16,100 to account for certain costs. Thereafter, the parties stipulated that the verdict be paid without prejudice to the right to have the lower court determine the issue of delay compensation. On October 31, 1978, the lower court held an evidentiary hearing on that issue.

As a general principle, when land is taken under the power of eminent domain, the owner thereof acquires the right to its value immediately upon appropriation. Until that value has been definitely ascertained, it is called damages, not a debt due; but when

[ 61 Pa. Commw. Page 386]

    ascertained the valuation relates back to the time of taking, and the owner is entitled to compensation for delay in its payment, unless just cause to the contrary be shown. Whitcomb v. Philadelphia, 264 Pa. 277, 107 A. 765 (1919). However, one exception to this entitlement is statutorily provided by Section 611 of the Eminent Domain Code,*fn2 which denies delay compensation to a condemnee for the ...


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