Biester, P. J.,
On December 23, 1964, in response to a petition by Burton Spear and Catherine Spear, his wife, this court appointed viewers directing them to view the premises of petitioners, hold hearings and file a report, and award just compensation to petitioners pursuant to the provisions of the Eminent Domain Code of June 22, 1964, P. L. 84, 26 PS §1.101, et seq. The Commonwealth of Pennsylvania has filed “Preliminary Objections in the Nature of Motion to Dismiss Petition and Discharge Viewers”, alleging that there has been no condemnation within the purview of the Eminent Domain Code, and that the owners have suffered no compensable injury justifying the appointment of viewers.
The matter is now before the court, after argument, on these preliminary objections.
From the pleadings filed and certain stipulations entered into between counsel for the respective parties, the following facts may be extracted:
Petitioners are the owners of buildings and improvements situate on approximately 80 acres of land in Doylestown Township, this county. This property was acquired by two deeds, one dated September 11, 1961, and the other February 15, 1963. Their immediate predecessor in title was the Elmi Corporation which, on January 27, 1961, during its period of ownership, procured plans drawn by Harris, Henry and Potter, Inc., registered engineers, dividing the premises in question into 71 building lots and delineating several roads or streets which, prospectively, permitted ingress and egress to and from the lots laid out on the plan. This plan of lots for the proposed development was presented to the Doylestown Planning Commission and the Bucks County Planning Commission, and was [212]*212recommended for approval, subject to the submission of the report of the Bucks County Department of Health respecting the feasibility of on-lot water and sewage systems.
On October 28,1964, the Secretary of Highways, for the Commonwealth of Pennsylvania, with the approval of the Governor, officially designated the future location and width of L. R. 1062 and L. R. 1068 (known respectively as Routes 202 and 611 by-passes), and thereafter filed plans of said highways in the Office of the Recorder of Deeds of Bucks County. Shortly after the filing of these plans, the Department of Highways sent a letter to petitioners attaching a portion of the plan showing how the petitioners’ property “is to be affected”. This letter quotes, in part, from section 219 of the State Highway Law of June 1, 1945, P. L. 1242, 36 PS §670.219, as follows:
“No owner or occupier of lands, buildings, or improvements shall erect any building or make any improvements within the limits of any State highway the width and lines of which have been established and recorded as provided in this section, and if any such erection or improvement shall be made no allowance shall be had therefor by the assessment of damages”.
The letter further states:
“Please note that your land has not been condemned; rather, the Commonwealth has signified its intention to construct the aforesaid highway improvement at some future time, probably within five (5) years. Prior to any actual condemnation of your property, the Department employees will contact you to negotiate the purchase of that portion of your property required for the highway project”.
After receipt of this letter, and carefully following the provisions of the recently adopted Eminent Domain Code, petitioners in writing granted the Department of Highways the right of entry and possession, in [213]*213accordance with section 407 (b) of the code, and then filed a petition requesting the court to compel the condemnor to file a declaration of estimated just compensation.
The petition for the appointment of viewers is presented under section 502 (e) of the code, which provides :
“If there has been a compensable injury suffered and no declaration of taking therefor has been filed, a condemnee may file a petition for the appointment of viewers substantially in the form provided for in subsection (a) of this section, setting forth such injury”.
Basically, it is the contention of the Commonwealth that until there be a condemnation of petitioners’ property, it is inappropriate for the court to appoint viewers to assess any damages and, since the Commonwealth has asserted no title whatsoever to the property of petitioners, nor entered upon, nor appropriated any part of it, that there has been no actual taking; that is to say, no physical appropriation and, therefore, no condemnation of the property involved.
Petitioners, on the other hand, maintain that although there has been no declaration of taking, their property has been condemned within the definition of that word contained in the Eminent Domain Code, which wordage was clearly suggested by article XVI, sec. 8, of the Pennsylvania Constitution, that a condemnation means a taking, injuring or destroying private property by authority of law for public purpose.
It appears to us to be completely unrealistic to say that the property rights of petitioners have not been adversely affected by the proceedings so far taken. In effect, the Commonwealth has said to the Spears that their right of enjoyment and contemplated use of their property in any way they see fit must remain in a state of suspension for an indeterminate period until when, as, and if it is decided that the declaration of taking [214]*214be filed. At the expiration of this period of time, whatever it may be, the owners may again use the property as they see fit, assuming the Commonwealth does not file a declaration of taking in the interim. Meanwhile, the owners are permitted to retain their legal title and to have the obligation of paying their taxes, insurance, interest on the mortgage and other charges on the land, but may not build upon their land, and the title to their property becomes, if not clouded (see Frontage, Inc. v. Allegheny County, 400 Pa. 249, 258), at least such as to make it almost impossible for them to proceed with any development of the land, or to sell any part thereof; for the plans of the Department of Highways, as filed, clearly indicate that the limited by-passes are plotted and drawn as rights of way over and across numerous building lots, planned streets and frontage of the Spear property. Quoting the rather callous language of the Commonwealth’s brief: “Petitioners in the instant case may continue to use their land as heretofore . . . at the same time landowners are given the opportunity to change their plans and conserve their energies from fruitless and futile labors”.
Our State and Federal Constitutions ordain, protect and guarantee the ownership and use of private property : United States Constitution Amendment V; article I, secs. 1 and 10 of the Constitution of Pennsylvania: Andress v. Zoning Board of Adjustment, 410 Pa. 77, 83.
The Constitution of Pennsylvania provides in article I, sec. 1:
“All men ... have certain inherent and indefeasible nights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property. ...”
“It is clear beyond the per adventure of a doubt that the ownership and possession of private property necessarily includes its lawful use — it would be of little [215]
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Biester, P. J.,
On December 23, 1964, in response to a petition by Burton Spear and Catherine Spear, his wife, this court appointed viewers directing them to view the premises of petitioners, hold hearings and file a report, and award just compensation to petitioners pursuant to the provisions of the Eminent Domain Code of June 22, 1964, P. L. 84, 26 PS §1.101, et seq. The Commonwealth of Pennsylvania has filed “Preliminary Objections in the Nature of Motion to Dismiss Petition and Discharge Viewers”, alleging that there has been no condemnation within the purview of the Eminent Domain Code, and that the owners have suffered no compensable injury justifying the appointment of viewers.
The matter is now before the court, after argument, on these preliminary objections.
From the pleadings filed and certain stipulations entered into between counsel for the respective parties, the following facts may be extracted:
Petitioners are the owners of buildings and improvements situate on approximately 80 acres of land in Doylestown Township, this county. This property was acquired by two deeds, one dated September 11, 1961, and the other February 15, 1963. Their immediate predecessor in title was the Elmi Corporation which, on January 27, 1961, during its period of ownership, procured plans drawn by Harris, Henry and Potter, Inc., registered engineers, dividing the premises in question into 71 building lots and delineating several roads or streets which, prospectively, permitted ingress and egress to and from the lots laid out on the plan. This plan of lots for the proposed development was presented to the Doylestown Planning Commission and the Bucks County Planning Commission, and was [212]*212recommended for approval, subject to the submission of the report of the Bucks County Department of Health respecting the feasibility of on-lot water and sewage systems.
On October 28,1964, the Secretary of Highways, for the Commonwealth of Pennsylvania, with the approval of the Governor, officially designated the future location and width of L. R. 1062 and L. R. 1068 (known respectively as Routes 202 and 611 by-passes), and thereafter filed plans of said highways in the Office of the Recorder of Deeds of Bucks County. Shortly after the filing of these plans, the Department of Highways sent a letter to petitioners attaching a portion of the plan showing how the petitioners’ property “is to be affected”. This letter quotes, in part, from section 219 of the State Highway Law of June 1, 1945, P. L. 1242, 36 PS §670.219, as follows:
“No owner or occupier of lands, buildings, or improvements shall erect any building or make any improvements within the limits of any State highway the width and lines of which have been established and recorded as provided in this section, and if any such erection or improvement shall be made no allowance shall be had therefor by the assessment of damages”.
The letter further states:
“Please note that your land has not been condemned; rather, the Commonwealth has signified its intention to construct the aforesaid highway improvement at some future time, probably within five (5) years. Prior to any actual condemnation of your property, the Department employees will contact you to negotiate the purchase of that portion of your property required for the highway project”.
After receipt of this letter, and carefully following the provisions of the recently adopted Eminent Domain Code, petitioners in writing granted the Department of Highways the right of entry and possession, in [213]*213accordance with section 407 (b) of the code, and then filed a petition requesting the court to compel the condemnor to file a declaration of estimated just compensation.
The petition for the appointment of viewers is presented under section 502 (e) of the code, which provides :
“If there has been a compensable injury suffered and no declaration of taking therefor has been filed, a condemnee may file a petition for the appointment of viewers substantially in the form provided for in subsection (a) of this section, setting forth such injury”.
Basically, it is the contention of the Commonwealth that until there be a condemnation of petitioners’ property, it is inappropriate for the court to appoint viewers to assess any damages and, since the Commonwealth has asserted no title whatsoever to the property of petitioners, nor entered upon, nor appropriated any part of it, that there has been no actual taking; that is to say, no physical appropriation and, therefore, no condemnation of the property involved.
Petitioners, on the other hand, maintain that although there has been no declaration of taking, their property has been condemned within the definition of that word contained in the Eminent Domain Code, which wordage was clearly suggested by article XVI, sec. 8, of the Pennsylvania Constitution, that a condemnation means a taking, injuring or destroying private property by authority of law for public purpose.
It appears to us to be completely unrealistic to say that the property rights of petitioners have not been adversely affected by the proceedings so far taken. In effect, the Commonwealth has said to the Spears that their right of enjoyment and contemplated use of their property in any way they see fit must remain in a state of suspension for an indeterminate period until when, as, and if it is decided that the declaration of taking [214]*214be filed. At the expiration of this period of time, whatever it may be, the owners may again use the property as they see fit, assuming the Commonwealth does not file a declaration of taking in the interim. Meanwhile, the owners are permitted to retain their legal title and to have the obligation of paying their taxes, insurance, interest on the mortgage and other charges on the land, but may not build upon their land, and the title to their property becomes, if not clouded (see Frontage, Inc. v. Allegheny County, 400 Pa. 249, 258), at least such as to make it almost impossible for them to proceed with any development of the land, or to sell any part thereof; for the plans of the Department of Highways, as filed, clearly indicate that the limited by-passes are plotted and drawn as rights of way over and across numerous building lots, planned streets and frontage of the Spear property. Quoting the rather callous language of the Commonwealth’s brief: “Petitioners in the instant case may continue to use their land as heretofore . . . at the same time landowners are given the opportunity to change their plans and conserve their energies from fruitless and futile labors”.
Our State and Federal Constitutions ordain, protect and guarantee the ownership and use of private property : United States Constitution Amendment V; article I, secs. 1 and 10 of the Constitution of Pennsylvania: Andress v. Zoning Board of Adjustment, 410 Pa. 77, 83.
The Constitution of Pennsylvania provides in article I, sec. 1:
“All men ... have certain inherent and indefeasible nights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property. ...”
“It is clear beyond the per adventure of a doubt that the ownership and possession of private property necessarily includes its lawful use — it would be of little [215]*215or no value unless the owner can deal with and use it as he desires, so long as its use is lawful”: Cleaver v. Board of Adjustment, 414 Pa. 367, 371.
It follows that “An owner of property is still entitled in Pennsylvania to certain unalienable constitutional rights of liberty and property. These include a right to use his own home [or property] in any way he desires, provided he does not (1) violate any provision of the Federal or State Constitutions; or (2) create a nuisance; or (3) violate any covenant, restriction or easement; or (4) violate any laws or zoning or police regulations which are constitutional”: Lord Appeal, 368 Pa. 121, 125; Lened Homes, Inc. v. Philadelphia Department of Licenses and Inspections, 386 Pa. 50, 54; Lhormer v. Bowen, 410 Pa. 508, 512. Subject to these limitations: “Neither the Executive nor the Legislature, nor any legislative body, . . . nor any other Governmental body has the right ... to take, possess, or confiscate private property for public use or to completely prohibit or substantially destroy the lawful use and enjoyment of property, without paying just compensation therefor”: Andress v. Zoning Board of Adjustment, supra, page 84.
A “taking” of property, for which compensation must be paid, does not necessarily require an actual physical taking or condemnation of the property involved, but may consist of any interference with the rights of ownership, use, and enjoyment of property: Miller v. Beaver Falls, 368 Pa. 189, 196; Rosenblatt v. Pennsylvania Turnpike Commission, 398 Pa. 111, 145; Cleaver v. Board of Adjustment, supra, at page 372.
As the Court of Appeals of New York said in Forster v. Scott, 136 N. Y. 577, quoted with approval in Andress v. Zoning Board of Adjustment, supra, page 85, and Miller v. Beaver Falls, 368 Pa. 189, 197:
“What the legislature cannot do directly it cannot do indirectly, as the constitution guards as effectually [216]*216against the insidious approaches as an open and direct attack. Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use and enjoyment that materially affect its value, without legal process or compensation, it deprives him of his property, within the meaning of the constitution. All that is beneficial in property arises from its use and the fruits of that use, and whatever deprives a person of them deprives him of all that is desirable or valuable in the title and possession. It is not necessary, in order to render a statute obnoxious to the restraints of the constitution, that it must, in terms or in effect, authorize an actual physical taking of the property or the thing itself, so long as it affects its free use and enjoyment, or the power of disposition of the will of the owner”.
The Commonwealth, in support of its position that there has been no physical appropriation or condemnation of the property involved and, therefore, that we are without authority to appoint viewers, cites such cases as May v. The County of Westmoreland, 98 Pa. Superior Ct. 488; Griffin v. City of New Castle, 88 Pa. Superior Ct. 439; Hermann v. North Pennsylvania Railroad Co., 270 Pa. 551; Philadelphia Parkway Opening, 295 Pa. 538. We believe that these cases no longer represent the law insofar as they support the Commonwealth’s position. As was said in the footnote in Rosenblatt v. Pennsylvania Turnpike Commission, supra, at page 145: “We note that the law as to what constitutes a taking has been undergoing a radical change during the last few years. Whenever the lawful rights of an individual to the possession, use or enjoyment of his land are materially abridged or destroyed by reason of the exercise or purported exercise of the power of eminent domain, his property is generally considered to be taken pro tanto, and he is entitled to compensation: Cf. Miller v. Beaver Falls, 368 Pa. 189, [217]*21782 A. 2d 34; Philadelphia Appeal, 364 Pa. 71, 70 A. 2d 847; also Sansom Street, Capian’s Appeal, 293 Pa. 483, 143 A. 134, 20 Corpus Juris 566”. To which may now be added Griggs v. Allegheny County, 402 Pa. 411, 414; Henry v. Allegheny County, 403 Pa. 272, 277.
It is our conclusion that the rights of petitioners to the free use and enjoyment of their property have been materially abridged, as has the power of disposition at the will of the owners, and that dt follows that they are entitled to compensation, assuming they are able to establish such loss. This finding does not lead us to the conclusion that the Act of June 1, 1945, P. L. 1242, to which we have heretofore alluded, is unconstitutional, for we are mandated by the Statutory Construction Act, when a statute is reasonably capable of two constructions, one of which will sustain its constitutionality and the other invalidate it, to adopt the construction which will make it valid: Rosenblatt v. Pennsylvania Turnpike Commission, supra, page 137. Since we are permitted, under section 502(e) of the Eminent Domain Code hereinbefore recited, to appoint viewers when petitioners suffer compensable injury, although no declaration of taking has been filed, we are afforded the opportunity of considering this section in the light of the Act of 1945, and believe it to be appropriate to appoint viewers in the posture of the case now before us.
Order
And now, to wit, October 8, 1965, the “Preliminary Objections in the Nature of Motion to Dismiss Petition and Discharge Viewers” are hereby overruled, denied and refused.