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November 3, 1997


Appealed From No. 96-002740-22-5. Common Pleas Court of the County of Bucks. Judge WEAVER.

Before: Honorable Bernard L. McGINLEY, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Emil E. Narick, Senior Judge.

The opinion of the court was delivered by: Narick


FILED: November 3, 1997

The issue before this Court is whether a landowner may file an action in ejectment against a governmental body which took a portion of the landowner's property through an eminent domain action, but still remains upon a portion of the property not subject to the taking.

Robert L. and Carol Rawlings (Landowners/Rawlings) appeal from the order of the Court of Common Pleas of Bucks County that granted the preliminary objections of the Bucks County Water and Sewer Authority (Authority) dismissing Landowners' action in ejectment, which sought to remove the Authority from its unauthorized occupation of a portion of Landowners' property. We reverse and remand.

The history of this matter is as follows: On August 17, 1983, the Authority filed a declaration of taking to condemn a portion of the land owned by the Rawlings for the installation of a pumping station. The property is irregular in shape and connected to a public roadway by a narrow access strip. Had the pumping station been built according to the Authority's plans in the declaration of taking, there would be an access strip, eleven feet wide, from the public roadway to the Rawlings land. However, a portion of the pumping station was actually built beyond the condemned area, reducing the remaining access strip to an unusable width of less than eight feet, eliminating the contemplated use of the parcel for the construction of a residence.

Soon after the declaration of taking had been filed, all of the parties became aware that the pumping station was built so that it extended beyond the de jure taking area. As a result, Landowners introduced into the condemnation proceedings a claim for damages for a de facto taking of the land, outside of the original condemnation area. Following a jury trial, a verdict in the amount of $55,000 was entered in favor of the Rawlings for damages to the original de jure taking area, plus the encroachment de facto taking area. *fn1 The Authority filed post-verdict motion on the basis that there was no de facto taking. The Authority asserted that the encroachment was the result of the negligence of an independent contractor who lacked the power of eminent domain. Because there was no "taking" of the land in the encroachment area, no compensation for that area was recoverable in the eminent domain proceeding. The Authority's post-verdict motion was granted, the verdict set aside and Landowners appealed to this Court. We affirmed, in Bucks County Water Sewer Authority v. 9,180 Square Feet of Land, 147 Pa. Commw. 612, 608 A.2d 1109 (Pa. Commw. 1992), holding that the trial court properly held that Rawlings' remedy was to seek damages in a civil action against the offending contractor. *fn2

Having been denied compensation in the eminent domain proceedings for the portion of their land not taken by the Authority, Rawlings commenced an action in ejectment to remove the Authority from the land they own in fee simple. Rawlings also sought damages for a continuing trespass. The Authority filed preliminary objections, arguing that the complaint should be dismissed because: 1) the action is barred by the doctrine of res judicata; 2) Rawlings failed to join necessary parties; and 3) the Authority is entitled to governmental immunity. Based solely on the res judicata issue, the trial court granted the Authority's preliminary objections and dismissed Rawlings' complaint.

On appeal to this Court, *fn3 Rawlings argue that the trial court erred in dismissing their complaint under the doctrine of res judicata because neither the causes of action nor the issues are identical. In the alternative, Landowners argue that if we should find that res judicata applies that the continuing trespass has stayed the statute of limitations against the contractor. Finally, Rawlings assert that the Authority's claim that it is immune from the cause of action is erroneous.

Rawlings first argue that their claims are not barred under the doctrine of res judicata. *fn4 The essential inquiry as to whether the doctrine of res judicata is applicable to a particular matter is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties had an opportunity to appear and assert their rights. Callery v. Municipal Authority of Blythe, 432 Pa. 307, 243 A.2d 385 (1968). In order for the doctrine of res judicata to apply in an action, four conditions must coalesce between the previous and present actions: 1) identity of persons and parties to the action; 2) identity of the thing sued upon; 3) identity of causes of action; and 4) identity of the quality or capacity of the parties suing or being sued. Id.

Rawlings assert that here in this common law ejectment action, they are claiming title to and seeking to regain possession of their real property by the removal of a portion of the pumping station owned and operated by the Authority that is currently, continuously and illegally occupying their land. Rawlings claim that the current action is intended to vindicate their title, ownership and possessory rights in their own real estate. They assert that ejectment is the appropriate form of action for settling a disputed title to real estate, Carelli v. Lyter, 430 Pa. 543, 244 A.2d 6 (1968), and ejectment is also the proper form of action to recover possession of land. Soffer v. Beech, 487 Pa. 255, 409 A.2d 337 (1979).

By contrast to this action in ejectment, the prior litigation, Rawlings assert, was a statutory eminent domain proceeding initiated by the Authority's filing of a declaration of taking. The purpose of the eminent domain matter was solely the determination of the proper amount of compensation due Rawlings for the acquisition by the Authority, under its right of eminent domain, of that portion of the Rawlings' land that was subject of the declaration, a de jure taking.

In the eminent domain proceeding, Rawlings attempted to obtain additional compensation for what they perceived a de facto taking of land, in addition to the land that was subject to the formal declaration. However, Rawlings' claim was rejected because the additional land was not taken by governmental authority clothed with the power of eminent domain. Rather, the encroachment onto Rawlings' land, beyond the area of the de jure taking, was determined to have resulted from the negligence of the Authority's contractors. Thus, the final judgment in the eminent domain proceeding covered only the part of Rawlings' land that was subject to the de jure taking, which Rawlings assert is not part of the subject matter of this case. We agree. The judgment did not reach ...

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