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UNITED STATES v. 0.08246 ACRES

June 5, 1995

UNITED STATES OF AMERICA, Plaintiff,
v.
0.08246 ACRES OF LAND, more or less, situated in the City of Allentown, Pennsylvania; CITIZENS OF LEHIGH COUNTY; COUNTY OF LEHIGH; COMMONWEALTH OF PENNSYLVANIA; AND UNKNOWN OWNERS, et al., Defendants.



The opinion of the court was delivered by: FRANKLIN S. VAN ANTWERPEN

 VAN ANTWERPEN, J.

 June 2, 1995

 On March 1, 1994, plaintiff United States filed a condemnation complaint and declaration of taking on behalf of the United States Postal Service to take control and possession of a 40 feet by 90 feet parcel of land in Allentown, Pennsylvania, upon which the government is building a federal courthouse. The condemned property is bounded on two of its four sides by public streets (Fifth Street and Hamilton Street), on a third side by a U.S. Postal Office, and on the fourth side by the Commonwealth Building, owned by claimant Commonwealth Realty.

 Commonwealth Realty does not dispute the government's right to condemn the property but claims that it has a compensable ownership interest because it is a successor in title to a landowner who had an ownership interest in the condemned property. The primary basis for this contention is an agreement signed in 1864 by five landowners ("1864 Agreement"), one of whom is a predecessor in title to Commonwealth Realty. The five signatories agreed in the 1864 Agreement not to erect buildings or other structures on the now condemned property and also agreed to otherwise maintain the property in certain ways, thus implying their ownership rights in it. Although its predecessor in title did not own any part of the condemned property, *fn1" claimant maintains that the other four signatories had ownership interests in it and the 1864 Agreement created reciprocal easements appurtenant for light and air and ancient view. It is Commonwealth Realty's position that building the federal courthouse is a violation of this easement and claimant thus seeks to be compensated accordingly.

 The government contends that the condemned property is public land commonly referred to as "Court House Square," and at no time was any portion of it owned by any of the five signatories to the 1864 Agreement. It relies upon a decision by Judge Davison of the Lehigh County Court of Common Pleas in County of Lehigh v. Yundt, et al., 35 Lehigh Law Journal 436 (Ct. Comm. Pleas, 1974), which discussed the ownership interests of the exact same property that was condemned and held that the title to the property had been in the public since 1762. *fn2" Consequently, the government maintains, no easement can exist since the owner of the land, i.e., the public, was not a party to the 1864 Agreement.

 A hearing was held before this court in Easton, Pennsylvania, on January 19, 1995. At the hearing, the government presented the testimony of two expert witnesses. Through its first expert, a professional land surveyor, the government presented a chronological survey of deed plots of property fronting along the condemned property from 1816 to 1927, indentures conveying the properties, and two ancient maps. The expert testified that the documents establish that the condemned property was public property before, during, and after 1864. The second expert, a real estate title expert, testified that a chain of title search had revealed no evidence of ownership of the condemned property by any of the five signatories to the 1864 Agreement.

 The claimant presented the testimony of Joel B. Wiener, Esquire, one of the two general partners of Commonwealth Realty, who testified that a review of histories and anthologies of the City of Allentown at both the Allentown Public Library and the Lehigh County Historical Society had turned up no references to public land known as "Court House Square." Through this witness the claimant also presented several postcards and pictures which depict the condemned property as fenced in at various times after 1864, thus indicating, claimant contends, private ownership.

 Following the hearing, the parties filed proposed findings of fact and conclusions of law, *fn3" all of which have been duly considered by this court. Based on the testimony presented at the hearing and the parties' briefs, we now render our decision.

 I. FINDINGS OF FACT

 A. Parties and Jurisdiction

 1. Plaintiff is the United States of America.

 2. Claimant is Commonwealth Realty, a Pennsylvania general partnership, of which Howard Wiener, Esquire and Joel B. Wiener, Esquire are general partners, with offices located at Suite 400, Commonwealth Building, Allentown, Pennsylvania.

 3. Plaintiff brought this action in accordance with the Act of Congress approved August 1, 1888 (25 Stat. 357 c. 725), as amended (40 U.S.C. § 257); the Act of February 20, 1981 (46 Stat. 1421, c. 307) (40 U.S.C. § 258a); the Federal Property and Administrative Services Act of 1949, approved June 30, 1949 (63 Stat. 377), as amended, subject to Public Law 97-51.

 4. Jurisdiction exists pursuant to 40 U.S.C. § 258(a).

 B. Condemnation Action

 5. On March 1, 1994, the United States of America filed a Complaint in Condemnation and a Declaration of Taking with respect to 0.08246 acres of land, more or less, located at the southwest corner of Fifth and Hamilton Streets, Allentown, Pennsylvania. The United States has begun building a new federal courthouse at this site. (Complaint in Condemnation).

 6. The condemned property is the easterly 90 feet by 40 feet portion of the 120 feet by 40 feet plot that the government refers to as "Court House Square." It extends from Fifth Street 90 feet along the south side of Hamilton Street at a width of 40 feet. It is bordered on the north by Hamilton Street, on the south by property owned by the United States Postal Service, on the east by Fifth Street, and on the west by the property of defendant Commonwealth Realty. (Complaint in Condemnation, Schedules A and B).

 7. Prior to the condemnation, the condemned property served as an open air park, containing only two monuments and a park bench.

 8. On March 18, 1994, an Order for Delivery of Possession was entered, granting plaintiff United States possession of the condemned property.

 9. Claimant Commonwealth Realty does not dispute the plaintiff's right to take and possess the condemned property. (N.T. at 172).

 C. Division of Land Prior to 1864 Agreement

 10. The Original Plan of Allentown, dated 1762 and prepared for William Allen *fn4" as maintained in the records of the Lehigh County Historical Society ("the William Allen Map of 1762"), indicates that at that time there were three lots in the southwest corner of Fifth *fn5" and Hamilton Streets, Lots 165, 179, and 193, all owned by Ann Penn Greenleaf. *fn6" (N.T. at 23-25, 81).

 11. Lot 165 was the most easterly of the three original lots and was subsequently divided into three subdivisions. At the time of the 1864 Agreement, these three subdivisions formed 502, 504, and 506 Hamilton Street. (Government Ex. 1, p. 3; N.T. at 32).

 12. Lot 179, the middle lot, was subsequently divided into two subdivisions. The easterly subdivision of these two at the time of the 1864 Agreement formed 508 Hamilton Street. (Government Ex. 1, p. 3; N.T. at 32).

 13. Lot 193, the most westerly of the three original lots, was subsequently divided into two subdivisions. At the time of the 1864 Agreement, the easterly subdivision of Lot 193, along with the westerly subdivision of Lot 179, together formed 510, 512, and 514 Hamilton Street. The westerly subdivision of Lot 193 formed 516 and 518 Hamilton Street. (Government Ex. 1, p. 3; N.T. at 32).

 D. 1864 Agreement

 14. The 1864 Agreement was between Margaret Wilson Saeger, owner of 510, 512, and 514 Hamilton Street, Henry C. Longnecker, owner of 508 Hamilton Street, Samuel Saylor, owner of 506 Hamilton Street, Hetty Unger, owner of 504 Hamilton Street, and Charles C. Seagreaves, owner of 502 Hamilton Street. (N.T. at 2; Government Ex. 2).

 15. Defendant Commonwealth Realty claims an interest in the 1864 Agreement as a successor in title to Margaret Wilson Saeger. (N.T. at 35).

 16. In the 1864 Agreement, the signatories promised to each other to not erect buildings or other structures and to otherwise maintain the area which includes the condemned property in certain ways:

 
"We the undersigned owners of the Vacant ground on the South side of Hamilton Street opposite the Court House . . . do hereby agree each respectively to enclose with a fence so much as the respective fronts of our several lots on the aforementioned Vacant Space and also each to erect one half of the Partition Fences of our respective lots as aforesaid and also to maintain for all time to come our said respective front fences and our portions of said Partition fences. . . . It being fully understood that said Tenant Space is to be used for no other purpose than door yards which each respectively may ornament with grass, shrubbery & trees . . . but nothing in this agreement to authorize the erection upon said space of any buildings or other structures calculated to impair its beauty or ancient view from the buildings on said lots . . . . We bind ourselves each the one to the other four and each of our respective heirs Executors and Administrators & assigns by these presents Uniting our hands and seals . . .

 (Government Ex. 1, p. 58).

 17. The 1864 Agreement was recorded in the Office of the Recorder of Deeds in and for Lehigh County in Volume 7, p. 316, on August 31, 1864. (Government Ex. 1).

 18. Claimant Commonwealth Realty claims that the 1864 Agreement evidences the fact that the signatories of the 1864 Agreement were owners of the area the government refers to as "Court House Square," which includes the now condemned property.

 20. Plaintiff United States claims that the signatories never had an ownership interest in the condemned property because "Court House Square" was public property in 1864. Consequently, it contends that the 1864 Agreement was merely a personal agreement between the private parties that had no legal bearing on the condemned property.

 E. Survey of Land Surrounding Condemned Property

 21. Plaintiff United States hired a professional land surveyor, Richard W. Czop, to conduct a chronological survey of deed plots of property owners fronting along the condemned property from 1816 to 1927. Mr. Czop both testified orally as an expert at the hearing on January 19, 1995, and compiled his results in a survey entitled, "Report on the Existence and Location of Court House Square and Adjoining Property Owners during the year 1864" ("the Report"), which was admitted into evidence. (Government Ex. 1).

 22. All conveyances from 1816 to 1927 of the relevant properties are laid out in a flow chart on page four of the Report.

 23. The Report generally concludes that at no time from 1816 to 1927 did any of the owners of the adjacent properties have title to the condemned property. (Government Ex. 1, p. 4; N.T. at 49).

 i. Conveyances Up to and Including the Signatories of the 1864 Agreement

 24. The distance from the southern edge of the condemned property to the northern edge of Maple Street, the street that runs parallel to Hamilton Street and intersects Fifth Street, is 185 feet. The distance from the southern edge of Hamilton Street to the northern edge of Maple Street is 225 feet. (Government Ex. 1, pp. 2-3).

 25. Lot 165, which eventually encompassed 502, 504, and 508 Hamilton Street, was to the immediate south of the condemned property and measured 185 feet in length. (Government Ex. 1, pp. 2-3).

 26. Lot 179, which eventually encompassed 508 and 510 Hamilton Street, also was to the immediate south of the condemned property and measured 185 feet in length. (Government Ex. 1, pp.2-3).

 27. Lot 193, which eventually encompassed 512, 514, 516, and 518 Hamilton Street, was to the immediate west of the condemned property and measured 225 feet ...


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