Appeal from the Order of the Court of Common Pleas of Wayne County in the case of In Re: Condemnation of land in Township of Damascus, Wayne County, Pennsylvania, D.B. 187 -- Page 3, Property of Lloyd E. Canfield and Eloise L. Canfield, his wife, No. 2, E.D. 1982.
John T. McLane, Thomas J. Foley, Jr. and Associates, P.C., for appellants.
Sarah Slesinger Smith, with her, George A. Welsh, David F. Snyder, Deputy Attorney General, Herbert L. Olivieri, Chief, Torts Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for appellees.
President Judge Crumlish, Jr. and Judges MacPhail and Colins, sitting as a panel of three. Opinion by Judge MacPhail. Judge Colins dissents.
Lloyd F. and Eloise L. Canfield (Petitioners) appeal from an order of the Court of Common Pleas of Wayne County which granted the preliminary objections of the Commonwealth of Pennsylvania and the Department of Environmental Resources (Commonwealth) and dismissed Petitioners' action.
The trial court found that Petitioners own land which fronts upon the Delaware River (River). Beginning as early as 1931, the states of New York, New Jersey and Pennsylvania have entered into agreements over the use of the waters of the River. Pursuant to those agreements, New York City has used water from
the River in accordance with a management scheme which involves diversion of water and compensatory release from various reservoirs constructed on the River.
Petitioners allege damages to the use of their property for fishing, recreation and other purposes caused by changes in the amount of water flowing in the River because of the dams and reservoirs, and changes in temperature following the release of cold water from the bottoms of the reservoirs into the River. Petitioners claim a right to recovery from the Commonwealth alleging that the Commonwealth unlawfully ceded the Petitioners' riparian rights in the various agreements over the use of the River.
Petitioners claim damages beginning in 1956 when the Pepacton Reservoir and Dam first spilled, continuing through 1967 when the Cannonsville Dam spilled for the first time, and occurring continually to the present as water is diverted from and released into the River.
In the court of common pleas, Petitioners petitioned for the appointment of a Board of View or, in the alternative, leave to proceed at law for damages for a continuing trespass, both negligent and intentional.
The Commonwealth responded with preliminary objections in the nature of a demurrer and raising the ...