In re Condemnation by the Commonwealth Department of Transportation

636 A.2d 1241, 161 Pa. Commw. 247, 1994 Pa. Commw. LEXIS 3
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 6, 1994
StatusPublished
Cited by6 cases

This text of 636 A.2d 1241 (In re Condemnation by the Commonwealth Department of Transportation) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Condemnation by the Commonwealth Department of Transportation, 636 A.2d 1241, 161 Pa. Commw. 247, 1994 Pa. Commw. LEXIS 3 (Pa. Ct. App. 1994).

Opinion

NARICK, Senior Judge.

The Commonwealth of Pennsylvania, Department of Transportation (Department) appeals from an order of the Court of Common Pleas of Allegheny County sustaining Donald Jordan’s and Petronilla Jordan’s (Jordans) preliminary objections to a declaration of taking filed by the Department to acquire the fee title underlying the easement for highway purposes previously acquired by the Department in the subject property in White Oak, Allegheny County.

The Jordans are the owners of the underlying fee title in land whose easement for highway purposes had been condemned in the early 1970’s at a time when the Department was only authorized to acquire easements when condemning land for highway purposes. One of the subject parcels had been condemned from the Jordans in 1971, and both had houses on them which were demolished following acquisition. Donald Jordan acquired the fee interest in the other property by purchasing it from the original owner in 1983 for $1,600.00. The contemplated highway cloverleaf was never constructed.

In 1979, pursuant to amendments to Section 2003 of The Administrative Code, the Department was given the power to acquire land in fee simple and “[t]he fee underlying any easement previously acquired by the department.” It was also given the power to sell at public sale any land, “acquired by the department if the secretary determines that the land is not needed for present or future transportation purposes.”1

In 1990, the Department filed a declaration of taking seeking to acquire the underlying fee with respect to the Jordans’ property. The Jordans filed preliminary objections to challenge this declaration. They argued successfully before the trial court that the Department’s condemnation of the underlying fee in the premises, for the purpose of rendering such property more readily alienable, was improper because it was not a condemnation for transportation purposes as is required by statute, nor was it a condemnation for a public purpose as is required by the federal and state constitutions. Furthermore, the trial court held that despite the holdings of Miller v. Department of Transportation, 91 Pa.Commonwealth Ct. 622, 498 A.2d 1370 (1985), and McCullough v. Department of Transportation, 134 Pa.Commonwealth Ct. 95, 578 A.2d 568 (1990), the Department’s failure to use the property as originally intended constituted a de facto abandonment of the easement. We disagree.

The trial court held, and Appellee argues, that because the Department no longer intends to build a highway on the land and only intends to condemn the underlying fee in order to be able to sell the land, the condemnation is illegal under the relevant statutes and the case law. However, Section 2003(e)(2) of the Administrative Code grants the Department authority to acquire certain lands even if not needed for highways or other transportation facilities. It provides:

(2) In addition to land required for highways and other transportation facilities, the department may acquire:
(i) Landlocked parcels ...;
(ii) Land abutting a highway ...;
(iii) The fee underlying any easement previously acquired by the department. 71 P.S. § 503(e)(2).

No party disputes that the Department is authorized to take land for transportation purposes under 71 P.S. § 513(e)(1), and 71 P.S. § 513(e)(2)(iii) plainly authorizes the acquisition of the underlying fee of any previously acquired easement for other than transportation purposes. However, the trial court construed this latter subsection of the statute to mean that any taking of the fee underlying a previously acquired easement is only justified when undertaken for transportation purposes. It is an axiom of statutory construction that every statute shall be construed, if possible, to give affect to all its [1243]*1243provisions, and no words or phrases are to be treated as mere surplusage. 1 Pa.C.S. § 1921(a); Patrick Media Group v. Department of Transportation, 533 Pa. 188, 620 A.2d 1125 (1993). As the trial court’s reading renders the introductory clause and indeed the entire subsection of the statute superfluous, we hold that the acquisition of the underlying fee need not be for transportation purposes. The Miller court came to this same conclusion, and we hold that Miller is dispositive on this issue, consistent with the plain language of the statute.

Related to the question of whether the Department need have a transportation purpose for acquiring an underlying fee, is the question of whether this condemnation is a taking for a public use.2 While, the Departs ment acknowledges that because there are no longer any plans to build the highway cloverleaf the land will not be used for any transportation-related purpose, it claims that a public purpose will still be served by such condemnation. The people of Pennsylvania previously invested significant public funds in compensating condemnees for the easement, and the public’s investment in the land would be lost if the Commonwealth failed to condemn the underlying fee and consolidate the title for sale. At the same time, the con-demnees who had previously been compensated for the taking, would receive a windfall. This, the Department claims, is in itself a public purpose, as required under the federal and state constitutions.3

The trial court held that the acquisition of the fee for this purpose, “surely is not such a public purpose for which PennDOT may condemn private properly. PennDOT is not in the real estate business, and it may not condemn private property to enhance its status as seller of real estate.” (R. at 85a).

Prior to 1979, the Department could only condemn an easement for highway purposes in properties actually required for construction of state highways. Bernstein Appeal, 112 Pa.Commonwealth Ct. 368, 535 A.2d 1210 (1988) (alloc. denied). This estate in land taken by the Department was unknown to the common law, and was sometimes called an easement and other times a base or conditional fee.4 Brookbank v. Benedum-Trees Oil Co., 389 Pa. 151, 131 A.2d 103 (1957).

Although the exact nature of such estates in land is difficult to pinpoint, the interest, while not a fee, is not a mere easement or right of way. It is more. It is the right to the actual and exclusive possession of the property at all times and for all purposes, and includes the right to build on the land, fence it in, and exclude other uses. It is comparable to a fee in the surface and so much beneath as may be necessary for support. This estate, taken from an owner under the right of eminent domain, has no further practical value to the owner in view of the rights of the state in it, unless the easement is formally abandoned. Brown v. Title Guaranty & Surety Co., 232 Pa. 337, 81 A. 410 (1911); Reed v. Allegheny County, 330 Pa. 300, 199 A. 187 (1938). Therefore, as the Department asserts, it compensates an own[1244]

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Bluebook (online)
636 A.2d 1241, 161 Pa. Commw. 247, 1994 Pa. Commw. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-condemnation-by-the-commonwealth-department-of-transportation-pacommwct-1994.