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COMMONWEALTH PENNSYLVANIA v. FRANK COBB AND PROCESSING MACHINERY AND SUPPLY COMPANY (12/14/88)

decided: December 14, 1988.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
FRANK COBB AND PROCESSING MACHINERY AND SUPPLY COMPANY, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of Commonwealth of Pennsylvania, Department of Transportation v. Frank Cobb and Processing Machinery and Supply Company, No. 931 June Term, 1982.

COUNSEL

Thomas J. Hines, Assistant Counsel, with him, John L. Heaton, Chief Counsel, for appellant.

Emil L. Iannelli, for appellees.

President Judge Crumlish, Jr., and Judges McGinley and Smith, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 122 Pa. Commw. Page 278]

The Department of Transportation (DOT) appeals a Philadelphia County Common Pleas Court order denying its exceptions and post-verdict motions and entering judgment in favor of Frank Cobb and Processing Machinery and Supply Company (PMS). We affirm.

In 1968, the Secretary of Highways*fn1 condemned a parcel of land owned by Cobb's predecessor in title in order to construct an elevated portion of a limited access highway, commonly known as "I-95."*fn2 Buildings on the property were demolished and compensation was paid therefor. The area beneath the highway, since acquired by Cobb, is presently used by his lessee, PMS, for equipment storage.*fn3

Pursuant to DOT's action to eject Cobb and PMS from the site, the common pleas court held that under the terms of the declaration of taking and the accompanying plans, DOT had acquired only an aerial easement plus a surface easement limited to the extent necessary to accommodate piers and other appurtenances. The court specifically relied on Cavalier Appeal, 408 Pa. 295, 183 A.2d 547 (1962), a factually similar case, in which our Supreme Court held that the Commonwealth had condemned only so much of the condemnee's land as was necessary for support on the ground's surface together with an aerial easement taken for the right-of-way.

[ 122 Pa. Commw. Page 279]

DOT concedes that Cavalier remains valid precedent but attempts to distinguish it factually. DOT insists that while the highway plans in Cavalier were silent as to the nature and extent of the estate acquired by the Commonwealth, the plans in this case clearly designate that the Commonwealth acquired a full surface easement as well as a specific aerial easement. We disagree.*fn4

The title page to the highway plans discloses that, "The estate to be acquired by the Commonwealth encompasses a surface easement unlimited in vertical dimension except in those areas, if any, where the detail plan designates an exception."

As in Cavalier the nature of the property interest to be acquired was expressly limited to an easement for highway purposes, as opposed to a taking in fee.*fn5 Further, although the term "surface easement unlimited in vertical dimension" suggests a full surface easement extending infinitely upward, it is equally evident that exceptions to this easement were to be designated in the highway plans. Those plans, and the resulting highway structure itself, clearly demonstrate an elevated limited access highway crossing over Cobb's property with only the supporting piers physically touching the surface. In light of the principle that property may be taken by ...


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