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CONDEMNATION WATER DISTRIBUTION MAINS AND APPURTENANCES OWNED BY BERKMONT INDUSTRIES (10/04/83)

decided: October 4, 1983.

CONDEMNATION OF WATER DISTRIBUTION MAINS AND APPURTENANCES OWNED BY BERKMONT INDUSTRIES, INC., ETC. BOROUGH OF BOYERTOWN, PETITIONER


Appeal from the Order of the Court of Common Pleas of Berks County in case of Condemnation of Water Distribution Mains and Appurtances owned by Berkmont Industries, Inc., situated partly in the Borough of Boyertown, Berks County, Pennsylvania, and partly in the Township of Douglass, Montgomery County, Pennsylvania, by the Borough of Boyertown for water distribution purposes, No. 159 April Term, 1977.

COUNSEL

Robert I. Cottom, Matten and Cottom, for petitioner.

Raymond C. Schlegel, with him Carl F. Mogel and Karen Lee Turner, Mogel, Speidel and Roland, and J. Gregg Miller and Barbara H. Sagar, Pepper, Hamilton & Sheetz, for respondent.

Judges Blatt, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 77 Pa. Commw. Page 359]

The Borough of Boyertown (Borough) has appealed from an order of the Court of Common Pleas of Berks County dismissing the Borough's preliminary objections to a petition under Section 502(e) of the Eminent Domain Code*fn1 for the appointment of a board of viewers. The petition had been filed by Berkmont Industries, Incorporated (Berkmont), and asserted that the Borough had committed a de facto taking as to certain property allegedly belonging to the petitioner.

The facts of this case are highly complex, and span a period of more than fifty years. Unlike the usual eminent domain matter, the instant case does not involve a taking or injury of a person's interest in land, as such, or a building. The res of this litigation is a system of water-distribution mains, which have been installed in the ground under public streets. Berkmont, claiming ownership of the distribution mains, asserted that the Borough committed a de facto taking by making an unauthorized connection to the mains, and by using that connection to supply water to certain additional customers of the Borough's water system.

[ 77 Pa. Commw. Page 360]

Background

In 1927, one J. Clifford Levengood owned a tract of land located partly in the Borough of Boyertown, Berks County, and partly in Douglass Township, Montgomery County. The Levengood tract is divided by Route 73, which is also known as East Philadelphia Avenue. Thus, part of the tract is also north of East Philadelphia Avenue, and part is to the south of it. Desiring to develop his property as building lots, Levengood entered into two agreements with the Borough to supply the tract with water from the Borough's water system.

The first agreement, dated 1927, included the following provisions:

1. The Borough permitted Levengood to connect a water main with the Borough main.

2. The Borough agreed to supply water for houses erected, or to be erected, on Levengood's property.

3. Levengood agreed to lay the main in a specified manner subject to the Borough's supervision and instruction.

4. The Borough was to receive the water rents from the customers.

5. Levengood could permit other property owners whose land abutted a street in which Levengood had laid a main to connect to such main if: (a) Levengood obtained the written consent of the Borough; and (b) the consumer agreed to pay the Borough for the water service.

The agreement also provided that:

6. Levengood could charge such other property owners the pro rata share of his expenses incurred in the construction of the main, based

[ 77 Pa. Commw. Page 361]

    upon the per front [footage] of property abutting the main.

7. If any of Levengood's property in Douglass Township should be annexed into the Borough, the main in the annexed area would become the sole property of the Borough.

8. The Borough agreed to maintain and repair the main after installation.

Pursuant to that agreement, the first Levengood main was installed, running eastward along East Philadelphia Avenue into Douglass Township, from the terminus of the Borough's main in East Philadelphia Avenue. That terminus was at the boundary line separating the Borough, which is in Berks County, from Douglass Township, which is in Montgomery County.

In 1928, based on an essentially identical agreement with the Borough, Levengood installed a second main. This one extended from his first main, and ran northward in the bed of a street called Montgomery Avenue. Both the first Levengood main and the second were entirely within Douglass Township.

By 1946, Levengood had sold portions of his tract, presumably as building lots. In January 1946, Levengood and his wife sold the remainder of the tract, together with such interest as they had in the two water mains, to Boyertown Realty Corporation (BRC).

Between 1947 and 1956, BRC laid several new water mains to serve its tract. Those new mains were installed in the beds of Rhoads Avenue, Highland Avenue, and Douglass Street, all of which, like East Philadelphia Avenue, are public streets running through the BRC tract. BRC also extended the main that Levengood had installed in East Philadelphia Avenue. The mains installed by BRC may be summarized as follows:

[ 77 Pa. Commw. Page 3621]

. A main installed in 1947 in a section of Highland Avenue that is within Borough limits.

2. A main installed in 1947 in a section of Rhoads Avenue that is within Borough limits.

3. A main installed in 1948 in a section of Rhoads Avenue that is within Douglass Township.

4. An extension main added in 1951 to the main in the Douglass Township section of Rhoads Avenue. This extension is entirely within Douglass Township.

5. Mains installed or added in 1953 in Douglass Street, Rhoads Avenue and Highland Avenue. All of these mains are ...


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