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decided: June 5, 1984.


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.

Author: Macphail

[ 83 Pa. Commw. Page 77]

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

[ 83 Pa. Commw. Page 78]

    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 statute of limitations.*fn1

We look first at Petitioners' claim in eminent domain. Regardless of whether any cause of action

[ 83 Pa. Commw. Page 79]

    which Petitioners may have had*fn2 accrued in 1956 or 1967, it is barred by the statute of limitations. In 1956, the relevant statute of limitations in eminent domain was six years.*fn3 A six year statute of limitations remained effective through 1967.*fn4 Obviously, either date upon which Petitioners rely is more than six years prior to the filing of this action in 1982.

Alternatively, Petitioners argue that the harm to their property constitutes a taking subject to a twenty-one year statute of limitations.*fn5 Section 25(b) of the Judiciary Act of 1976,*fn6 in reference to the Judicial Code, provides that "[n]o cause of action fully barred prior to the effective date of this act shall be revived by reason of the enactment of this date." Section 5530 of the Judicial Code did not become effective until June 27, 1978, more than six years after the 1967 harm Petitioners allege. Therefore, this cause of action was fully barred because the statute of limitations had run prior to the effective date of Section 5530 of the Judicial Code.

Turning to the allegations of trespass, Petitioners allege that the Commonwealth is responsible for a continuing

[ 83 Pa. Commw. Page 80]

    trespass and that their property rights and premises have been injured. Because the result of this continuing trespass is a permanent harm, "there can be but a single action therefor to recover past and future damages and the statute of limitations runs against such cause of action from the time it first occurred or at least from the date it should reasonably have been discovered." Sustrick v. Jones & Laughlin Steel Corp., 413 Pa. 324, 328, 197 A.2d 44, 47 (1964). Even using the later date alleged by Petitioners, 1967, the two year statute of limitations*fn7 had run by the time the Petitioners filed this action in 1982.

Assuming, arguendo, that Petitioners' claims in trespass are not time barred, the court of common pleas properly held that the defense of sovereign immunity*fn8 exists for the Commonwealth as to any cause of action of Petitioners which may have arisen within two years of the date of filing this action. Petitioners' argument that this statutory sovereign immunity is unconstitutional is without merit. Marino v. Seneca Homes, Inc., 63 Pa. Commonwealth Ct. 534, 439 A.2d 1287 (1981).

For the reasons stated above, we affirm the order of the court of common pleas.


The order of the Court of Common Pleas of Wayne County dated November 5, 1982, No. 2-E.D. -- 1982, is hereby affirmed.

Judge Colins dissents.



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