Commonwealth v. Guyette

520 A.2d 548, 103 Pa. Commw. 402, 1987 Pa. Commw. LEXIS 1897

• Court: Commonwealth Court of Pennsylvania
• Decided: January 30, 1987
• Docket: Appeal, 2635 C. D. 1985
• Status: Published

Opinions

Opinion by Judge Barry,

This is an appeal from an order of the Court of Common Pleas of Luzerne County affirming a Board of Viewers’ decision awarding damages to appellees, William L. Guyette and Ruth A. Guyette (Guyettes) and Paul D. Wasserott, Jr. (Wasserott), under Section 612 of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-612.

We must determine whether the Commonwealths construction of a medial barrier on the highway bordering appellees’ properties created a permanent interference with access which would be compensable under the Eminent Domain Code.

The relevant facts, as found by the trial court and supported by the record, are as follows. Wasserott is the proprietor of a medical supply business. The Guyettes are in the business of selling communications services and equipment. They each own commercial properties abutting Route 309, a four-lane highway in Courtdale Borough, Luzerne County. In October of 1980, the Commonwealth erected a medial barrier along the center of the highway. The parties concede that the only substantial detour resulting from the barrier affects northbound vehicles who wish to enter appellees’ property. Although conflicting testimony was presented regarding the exact distance involved, the trial court found that eighteen wheel trucks would have to travel an additional 7.45 miles in order to enter appellees’ property.¹ Based on this finding, the court concluded that the medial barrier constituted a permanent, com-pensable interference with appellees’ property.

It is well established that:

Where land is taken or purchased for highways, the abutting owner retains, as an incident to ownership of the remainder of his land, the right of access, or of ingress and egress. This right cannot be taken from him unless compensation is made therefor under the law. It is a property right, protected by the Constitution. Such right of access does not entitle the abutting owner to access at all points along the highway; it does entitle him to access, by reasonable and conventional means, to his property from the highway and from his property to the highway. (Emphasis in original.)

Wolf v. Department of Highways, 422 Pa. 34, 39, 220 A.2d 868, 871 (1966). Wolf controls the application of Section 612 notwithstanding the fact that it preceded the Eminent Domain Code. Hession Condemnation Case, 430 Pa. 273, 242 A.2d 432 (1968).

We have dealt with this exact issue on several previous occasions. In Condemnation of 1315 to 1391, 34 Pa. Commonwealth Ct. 356, 383 A.2d 1289 (1978), we held that detours of 2.35 and 2.80 miles were not unreasonable even when taking into account the feet that the property in question was used as a truck terminal. In Department of Transportation v. Nod’s Inc., 14 Pa. Commonwealth Ct. 192, 321 A.2d 373 (1974), the additional travel necessitated by the medial barrier was four miles but we held that such distance was not so unreasonable as to constitute a taking within the meaning of the Eminent Domain Code. In Commerce Land Corporation v. Department of Transportation, 25 Pa. Commonwealth Ct. 561, 566, 361 A.2d 469, 471 (1976), we summarized the law in this area as follows:

The law, as set forth in Hession, Nods and similar cases, makes it clear that the necessity to travel a circuitous route (at least up to four miles) will not give rise to a Section 612 damage claim. However, it is not inconceivable that there may be routes so circuitous as to indeed represent an unreasonable permanent interference with access.

The trial court in the case at hand found that the detour was, in feet, so circuitous as to represent an unreasonable permanent interference with access. It based this conclusion on the specific finding that the appellees’ businesses require daily deliveries and the “bulk” of these deliveries are made by eighteen wheel trucks which must now travel an additional 7.45 miles in order to reach appellees’ property.

In a condemnation case, our scope of review is limited to a determination of whether the trial court abused its discretion, whether an error of law was committed, or whether findings and conclusions are supported by sufficient evidence. Condemnation of 1315 to 1391. After carefully reviewing the record, we conclude that the findings and conclusions are supported by sufficient evidence and the trial court neither abused its discretion nor committed an error of law.

Affirmed.

Order

Now, January 30, 1987, the order of the Court of Common Pleas of Luzerne County, dated September 12, 1985, at Nos. 1671 and 1672 of 1981, is affirmed.

1 The trial court made no finding as to the extra distance which cars, vans and other small trucks would have to travel to reach appellees’ property. Both appellant and appellees, however, maintain in their briefs that this distance would be at least 3.5 miles.