Opinion
October 2, 1950.
November 13, 1950.
Eminent domain — Damages — Appropriation of land — Construction of bridges and highways — Viewers — Consideration of damages from all or part of project.
Where the Public Utility Commission approves an application of the municipal authorities for the construction of a new bridge and highway approaches thereto, and lands of private owners are taken for the purpose of the improvements, the court of common pleas may appoint viewers to determine damages resulting from the construction of the highway approaches, without considering, at the same time, alleged consequential damages resulting from the completion of other parts of the general project, including the closing of the old bridge.
Before DREW, C. J., STERN, STEARNE, JONES, LADNER and CHIDSEY, JJ.
Appeal, No. 27, March T., 1950, from order of Court of Common Pleas of Allegheny County, Oct. T., 1948, No. 3350, in re Petition of the County of Allegheny for the Appointment of Viewers etc. Order affirmed.
Proceeding upon exceptions of property owner to report of Board of Viewers.
The facts are stated in the opinion by MONTGOMERY, J., of the court below, EGAN, ADAMS and MONTGOMERY, JJ., as follows:
We have under consideration exceptions filed by the Gulf Oil Corporation to the report of a Board of Viewers appointed by this court. As noted in the caption of the case, the appointment was for the following purpose: " — to determine and award damages to the owners of certain properties taken, injured or destroyed by the construction of a highway designated as Ramp No. 2 extending from the McKeesport-Glassport approach of the [proposed] Dravosburg Bridge to a point on Pacific Avenue approximately 200 feet westwardly from Roanoke Street, in the City of McKeesport, County of Allegheny, pursuant to the Pennsylvania Public Utility Commission Order at [Application] Docket No. A 64428."
Exceptant owned one of such properties, it being designated as V-404 in this proceeding and also No. 404 in the proceeding before the Pennsylvania Public Utility Commission. The property designated as V-404 fronts approximately 120 feet on the northeasterly side of Pacific Avenue and approximately 170 feet on the northwesterly side of John Street, its northwesterly boundary is Fenton Alley. Exceptant owns other property on the opposite side of John Street but according to the plans filed in this proceeding it is not included in the area designated as V-404 nor is it included in the property described as No. 404 in the Public Utility Commission proceeding.
The application to the Pennsylvania Public Utility Commission was made by the City of McKeesport, the Borough of Glassport, and the County of Allegheny and was required under Section 409 of the Public Utility Law of 1937, May 28, P. L. 1053, Article IV, as amended (66 P.S. 1179) since certain railroad crossings were involved in the improvements contemplated by the aforementioned municipalities. The Public Utility Commission approved the application, which, among other things, authorized and directed the construction of a new bridge from the dividing line between the City of McKeesport and the Borough of Glassport to the Borough of Dravosburg, all within said County of Allegheny. It further authorized and directed the construction of approaches thereto, including the highway designated as Ramp No. 2 extending from the McKeesport-Glassport approach of the proposed new bridge to a point on Pacific Avenue approximately 200 feet west from Roanoke Street in the City of McKeesport. In its order, the Commission caused to be taken and appropriated for the purpose of the improvements, certain properties including part of the exceptant's property which is designated as V-404 and provided that the County of Allegheny should pay compensation for damages due to the owner of said parcels of property taken, injured or destroyed by reason of the construction of the improvement. The order further referred the matter of determination of the damages to this court. Authority for this part of the order is contained in Section 411 of the Public Utility Law, aforesaid; see (66 P.S. 1181). The County of Allegheny applied for the appointment of Viewers in this proceeding.
As we understand exceptant's position, it complains that: First — This court had no right to authorize a Board of Viewers to determine damages that might result from the construction of Ramp 2 without considering, at the same time, the damages resulting from the completion of all other parts of the general project, particularly the closing and razing of the old bridge — and therefore the proceeding is illegal and void ab initio; or Second — The Board erred in refusing to consider and award damages for the loss allegedly sustained by exceptant through the depreciation in value of both pieces of property owned by it on John Street, which loss was due, not only to the construction of the Ramp, but to the closing and razing of the old bridge, and the diversion of automobile traffic thereby.
The record submitted to us indicates that the only matter submitted to the Board was the construction of Ramp 2. The title of the petition indicates this and the first paragraph does likewise. We find no authorization contained in the order of appointment beyond this. Neither the petition for the appointment of Viewers nor the plan on file shows that the old bridge was to be closed and razed; in fact, the original plan on file in these proceedings fails to show the bridge at all. Therefore, had the Board considered any other matter than the effect of the construction of Ramp 2 it would have been extending its authority beyond that given in the order appointing it. A Board of Viewers derives its authority from the order of court appointing it and it should not go beyond what the order contains, Seltzer v. Commonwealth, 55 Pa. D. C. 59; also, see the Act of 1929, May 2. P. L. 1278, Article VII, Section 523, (16 P.S. 523). We, therefore, hold that the second objection is groundless because the Board conducted this proceeding wholly within its authority, considering only the effect of the construction of Ramp 2 and apparently refusing to consider damages related to the closing of the old bridge.
The first objection must likewise fall. We find no authority compelling a court to include in one proceeding every phase of an extensive project nor all properties affected thereby. The general county law applicable to counties of the second class, 1929 May 2, P. L. 1278, Article VII, Section 518, makes provision for petitions to be filed by any person or persons or the county. Thus many applications may be filed pertaining to the same improvement. As a practical matter this is a benefit to the injured property owner since by this means he can secure payment for damages to his particular property before the entire project may be completed; otherwise he would possibly be compelled to wait an extended time beyond the actual taking of his property before he could receive his compensation. In the present project, the county has applied for viewers to determine the damages occasioned by a particular part of the work. We see nothing wrong with this nor anything in the law which would compel this court to have its Board of Viewers include within its consideration this entire project. In this connection, it is noted that the old bridge is still open and that none of the alleged damages have been sustained by the exceptant. When it is closed, if exceptant suffers any further compensable damages, it can then petition for viewers to determine its claim; likewise, with any other parts of the general project that may affect exceptant's properties. The fact that the entire project was considered in one proceeding by the Pennsylvania Public Utility Commission is no reason for compelling this court to have its viewers do likewise. An examination of the many elements making up the general project as indicated in the title of the Public Utility Commission proceedings discloses what a tremendous task it would be for a Board of Viewers to consider it all at one time and what great delay might be occasioned if it did.
We find no indication in the record or in the brief of exceptant that there is any claim for consequential damages which have not been considered by this Board of Viewers which are related solely to the taking of that portion of exceptant's property within the area designated as 404. It appears that exceptant's alleged claim for consequential damage is based upon the closing of the bridge solely.
The record indicates, and there is no indication to the contrary, that the Board did consider all damages that were related to the construction of the ramp. No complaint is made that the closing of Fenton Alley, as well as the actual taking of part of the exceptant's property was not considered by the Board. The closing of the alley would not appear as a basis for claim of great damage since the Alley was not a through-street; it ended at Pacific Avenue. Prior to the improvement it seems to have been for the convenience of exceptant and the other property owner on its easterly side, both of whom still have access to their properties by means thereof.
We, therefore, see no reason to discuss in this opinion the matter of consequential damages which exceptant is claiming by reason of the closing of the bridge.
The exceptions will be dismissed and the Viewers' report confirmed.
Exceptant appealed.
Elder W. Marshall, with him Frank W. Ittel, Joseph I. Marshall and Reed, Smith, Shaw McClay, for appellant.
Edward G. Bothwell, First Assistant County Solicitor, with him Nathaniel K. Beck, County Solicitor, and Harry V. Bair, Assistant County Solicitor, for appellee.
Order affirmed on the opinion of the learned court below.