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Township of Millcreek v. Angela Cres Trust of June 25

July 15, 2011


The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Argued: April 5, 2011



Millcreek Township (Township) appeals an order of the Court of Common Pleas of Erie County (trial court) sustaining the preliminary objections of the Angela Cres Trust of June 25, 1998, (Trust) to the Township's condemnation of Trust land. The trial court held that the Township lacked authority under The Second Class Township Code*fn1 to take an easement on Trust property for its proposed storm water management project. Discerning no error in the trial court's decision, we affirm.

In June 2005, the Township filed a Declaration of Taking to condemn Trust property, which was followed in January 2006 with an Amended Declaration of Taking. The Township initiated its condemnation of Trust land as part of its "Heidler Road Channel Improvement Project," which was designed to improve storm water drainage. The project will straighten an existing drainage canal that begins at Heidler Road, and crosses land owned by the Trust and by various private landowners. The Township proposes to realign approximately 800 feet of this channel; add three culverts fifty feet in length; and install concrete block bank walls along the canal. The proposed realignment will create 500 linear feet of new drainage channel where none currently exists. The Township's taking will burden approximately 0.618 acres of Trust land with an easement.

The Trust filed preliminary objections to the Township's condemnation, and the Township responded with a motion to dismiss. The trial court denied the Township's motion and scheduled a hearing on the Trust's preliminary objections for December 2009.

In August 2009, the Trust moved to limit the legal issues in the hearing. It asserted that Sections 1513 and 2702 of The Second Class Township Code, on which the Township relied, did not authorize the Township's condemnation. Section 1513 authorizes a township to widen and deepen watercourses running through the township ... to prevent water from overflowing the banks. For these purposes, townships may enter and condemn property as may be necessary.

53 P.S. §66513 (emphasis added). Section 2702(a) authorizes a township to acquire an existing system or facility for the management of surface water runoff which may have been established or constructed by any property owner in the township . . . 53 P.S. §67702(a) (emphasis added). The Trust argued that the Township was not "deepening" or "widening" an existing watercourse but creating a new channel. It also argued that two pipes that empty into a ditch on Trust property was not an "existing system" constructed to manage surface water runoff. Therefore, The Second Class Township Code did not authorize the Township's condemnation. The trial court granted the motion and limited the hearing to those two issues. Only if the Township prevailed would the other issues raised in the Trust's preliminary objections be addressed.

The Trust first presented the testimony of Greg Newell, a civil engineer. He testified that the Township's project would change the course of the existing channel, not just deepen and widen the existing watercourse. It would create the new channel 500 feet long where no channel presently exists. Newell then testified about the ditch and two pipes located on Trust property and whether they were constructed to manage surface water runoff. He explained that in 1964 a drain pipe 30 inches in diameter and a storm drain manhole were constructed on the Trust property by adjacent landowners, the Pomeroys, under an easement granted to the Pomeroys. The recorded easement shows a pipe 15 inches in diameter. However, Newel explained the 15-inch clay pipe that exists today on the Trust property appears not to be the one in the easement because it is placed in a different angle and direction. The manhole collects water from the 30-inch and 15- inch pipes and directs it into a ditch on the Trust property.

Next, the Trust presented Paul White, a geologist, who testified about his investigation of the 15-inch pipe. He traced the pipe from the manhole using an instrument that emits an electromagnetic signal. White opined that the 15-inch pipe that ties into the manhole is not the one shown in the Pomeroy easement. On cross-examination, White stated that the instrument went 37 feet into the pipe when it hit an obstruction. He did not believe the obstruction was caused by a turn in the line, because the instrument can make turns. White also opined that the 15- inch pipe and manhole collect groundwater, not surface water.*fn2 Specifically, he believed the pipe was installed as part of a tile drainage system, typically used to draw shallow groundwater from agricultural fields. The Trust property is used for agricultural purposes.

At the conclusion of White's testimony, the Trust explained that its evidence on the 30-inch and 15-inch pipes was offered in response to the Township's position expressed in its answer to the Trust's preliminary objections. The Trust asserted the pipes and manhole had no bearing on whether the Township's condemnation was authorized by The Second Class Township Code. This was because the project was leaving the pipes, manhole and ditch intact and unchanged. Accordingly, their existence and purpose were irrelevant to the proposed condemnation.

The Township responded with the testimony of Clayton Fails, a professional engineer. Fails testified that the Township's decision to move the channel was made in response to a request of the Trust's adjacent property owner. Fails estimated that the new channel would be located 20 to 30 feet from the existing channel. Fails opined that the 15-inch pipe was more likely a storm sewer pipe and not a tile field drainage pipe.

The trial court made a site visit, after which it summarized its findings. The 15-inch pipe, it observed, was broken in a number of places and, thus, does not drain into the ditch on Trust property. Green dye was injected into the pipe at various locations, but it never reached the manhole. The trial court found that because the pipe is not functional, it cannot be part of an "existing system" for managing surface water.

Richard Morris, the Township engineer, testified at a subsequent hearing. He removed obstructions from the 15-inch pipe and, then, green dye eventually arrived at the manhole. Morris opined that the 15-inch pipe that drained into the manhole was the one noted on the Pomeroy easement. Upon crossexamination, Morris admitted that he did not know ...

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