Appeal from the Order of the Court of Common Pleas of Butler County in case of Commonwealth of Pennsylvania, acting by and through the Pennsylvania Game Commission v. 21.1 acres of land in Washington Township, Butler County, and Homer Renick and Patricia Renick, his wife, A.D. No. 72, June Term, 1973, Book 100, Page 278.
Stuart M. Bliwas, Chief Counsel, for appellant.
Lee C. McCandless, with him, James E. Kerr, for appellees.
Judges Craig, Barry and Colins, sitting as a panel of three. Opinion by Judge Barry.
The Pennsylvania Game Commission (Commission) appeals an order of the Court of Common Pleas of Butler County awarding delay compensation and interest to Homer and Patricia Renick (condemnees).
The condemnees are owners of a tract of land on which they grow Colorado blue spruce trees to be sold as Christmas trees. In 1978 they were awarded just compensation for a flood easement over 21.1 acres of their land taken by the Commission in connection with the operation of a nearby dam. On April 21, 1980, the trial court ordered payment of delay compensation from the date of taking, March 23, 1978, to the date of payment, August 9, 1978. The Commission appealed the issue of delay compensation to this Court. In Pennsylvania Game Commission v. 21.1 Acres of Land in Washington Township, 61 Pa. Commonwealth Ct. 383, 433 A.2d 915 (1981), we held that a condemnee is entitled to delay compensation under Section 611 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-611, when the condemnor effectuates the taking by obtaining possession. If the condemnation involves a flood easement, the condemnor will gain possession when the land in question is actually flooded. A condemnee has a prima facie entitlement to delay compensation from the date of taking, Whitecomb v. Philadelphia, 264 Pa. 277, 107 A. 765 (1919). If the condemnee is to be denied delay compensation, the condemnor must prove continued possession by the condemnee. We, therefore, concluded that because, in this case, continued possession by the condemnees depended on the absence of flooding the Commission could prevail if it proved the absence of flooding or if the condemnees
defeated the presumption in their favor by admitting to continued possession of the condemned property. The case was remanded and a hearing was held before the trial court for the purpose of allowing the Commission an opportunity to meet this burden of proof. The trial court concluded that the Commission failed to overcome the presumption in favor of the condemnees and it awarded delay compensation plus interest at a rate of six percent per annum from August 9, 1978, to the date of payment. This appeal followed.
Our scope of review of an eminent domain case is limited to a determination of whether the trial court committed an abuse of discretion or an error of law. Appeal of PennDOT, 54 Pa. Commonwealth Ct. 478, 422 A.2d 711 (1980).
The Commission essentially contends that the trial court's decision is contrary to the evidence. It maintains that the evidence presented clearly establishes that the condemnees' land was not flooded during the time in question. Our careful review of the record, however, leads us to conclude that the testimony presented by the Commission's witnesses is insufficient to establish the absence of flooding.
Ronald Kurtz, a civil engineer and custodian of the record of the dam testified on behalf of the Commission that the water behind the dam must rise to 1,204.2 feet to cause water to flow from the stream bed and flood the condemnees' property. (N.T., p. 20, January 13, 1983.) Mr. Kurtz testified that 4.9 inches of rain during a twenty-four hour period would cause the water behind the dam to rise to an elevation of 1,204.5 feet. (N.T., pp. 21-22, January 13, 1983.)
Melvin Sankey, a weather observer for the National Weather Bureau, who recorded the daily precipitation from a point near the Borough of Slippery Rock, testified that the heaviest rain recorded during ...