Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of In the Matter of: Selection and Appropriation of Manayunk Schuylkill Canal, Northwest of Parker Avenue and Umbria Street for Park Purposes. Dominic Sorrentino and Mary Sorrentino, h/w v. City of Philadelphia, No. 4449 May Term, 1978.
Mary Rose Cunningham, with her, Joy J. Bernstein, Assistant City Solicitor, for appellant.
Murray B. Dolfman, with him, Lester L. Dolfman, for appellees.
Judges Craig and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins. President Judge Crumlish, Jr. did not participate in the decision in this case.
[ 95 Pa. Commw. Page 237]
The City of Philadelphia (City) appeals an order of the Court of Common Pleas of Philadelphia County, which dismissed the preliminary objections to the Petition for Appointment of a Board of Viewers filed by Dominic and Mary Sorrentino (appellees) and held that the City's construction of a towpath along the Manayunk Schuylkill Canal (Canal) constituted a de facto taking of appellees' property. We affirm.
Appellees are owners of property adjacent to the Canal. In 1977, the City appropriated ground along the Canal, including a portion owned by appellees, for the construction of a public towpath. Appellees
[ 95 Pa. Commw. Page 238]
filed a Petition for Appointment of a Board of Viewers, pursuant to Section 502(e) of the Eminent Domain Code,*fn1 alleging that the towpath was situated on ground conveyed to them by virtue of two deeds dated 1965 and 1970, respectively, and that the City had failed to file a Declaration of Taking or to compensate them for this property. The City filed preliminary objections averring that the towpath was situated on land owned solely by the City.*fn2 After a hearing, the trial court concluded that there had indeed been a de facto taking*fn3 of appellees' property, dismissed the preliminary objections and ordered a Board of Viewers to assess damages and award compensation. The City appealed this decision.
Where the trial court has dismissed preliminary objections to a petition for appointment of viewers, this Court's standard of review is limited to a determination of whether the trial court abused its discretion or committed an error of law. McCracken v. City of Philadelphia, 69 Pa. Commonwealth Ct. 492, 451 A.2d 1046 (1982).
Upon appeal, the City contends that the trial court abused its discretion by permitting appellees' witnesses
[ 95 Pa. Commw. Page 239]
to testify as experts on the exact location of appellees' property. Appellees offered the testimony of three witnesses, none of whom was a registered surveyor. The first witness, a land developer, testified that he had worked for six years as an assistant to a registered surveyor. Appellees' second witness, a local resident and historian, stated that he had learned surveying techniques while working for thirty-five years in the construction business. Appellees' final witness, a real estate appraiser, testified that he was familiar with surveys and could read them. Each witness had examined the deeds purporting to convey the land in question to appellees and had examined a survey of appellees' property performed by the City in 1973. Each witness expressed the opinion that the towpath encroached upon land owned by appellees. In contrast, the City's experts, who had similarly examined the deeds and attempted to ...