Powley v. Commonwealth

631 A.2d 743, 158 Pa. Commw. 174, 1993 Pa. Commw. LEXIS 534
CourtCommonwealth Court of Pennsylvania
DecidedAugust 24, 1993
DocketNo. 680 C.D. 1992
StatusPublished
Cited by5 cases

This text of 631 A.2d 743 (Powley v. Commonwealth) 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
Powley v. Commonwealth, 631 A.2d 743, 158 Pa. Commw. 174, 1993 Pa. Commw. LEXIS 534 (Pa. Ct. App. 1993).

Opinion

KELLEY, Judge.

Kenneth E. Powley and his wife Penelope N. Powley (Powleys) appeal from an order of the Court of Common Pleas of Carbon County (trial corat) which denied the Powleys’ objections to the report of the board of view in a condemnation proceeding.

On August 30, 1982, the Commonwealth of Pennsylvania, Department of General Services (Commonwealth), filed a declaration of taking whereby pursuant to the Eminent Domain Code (Code)1 the Commonwealth condemned and took title to a 11.1 acre tract of land owned by the Powleys in East Side Borough and Kidder Township along the Lehigh River in Carbon County. The Powleys’ tract, along with others in proximity, were taken for the purposes of the preservation, dedication and conservation of the upper Lehigh Valley. The Powleys filed with the trial court a petition for the appointment of a board of view on August 24, 1987. The trial court entered an order on the same date appointing viewers to ascertain and award just compensation.

The board of view (board) held a view and hearing on October 6, 1987 and filed its report on May 18, 1988 which awarded damages to the Powleys in the amount of $40,000. The board refused to apply the “unity of use doctrine” to two additional, non-contiguous parcels of land also owned by the Powleys and used along with the condemned parcel to provide guided river-rafting trips on the Lehigh River.

The Powleys filed an appeal to the trial court from the report of the board on June 16, 1988 objecting to the board’s findings and asserting the applicability of the unity of use doctrine to the two non-contiguous parcels. Following evidentiary hearings on June 1, 1989 and June 26, 1989, the trial court issued an order on March 13, 1992 which dismissed the Powleys’ objections to the board’s report and further held that the unity of use doctrine was inapplicable. The Powleys appeal from this order.

[177]*177After review of the evidence, the trial court made findings of fact which may be summarized as follows. The 11.1 acre tract condemned by the Commonwealth was acquired by the Powleys on December 3, 1980. At the time of the condemnation, the Powleys were leasing the property to Whitewater Challengers, Inc. (Whitewater), a Pennsylvania corporation.2 Whitewater not only provides guided whitewater rafting tours of the Lehigh River, it also sells related equipment, clothing, and souvenirs. In addition, Whitewater provides rafting clinics and lodging facilities to its patrons.

Whitewater paid rent to the Powleys for the use of the property, paid the employees of the rafting operation, and paid for many of the improvements made to the property which were associated with the operation.

The Powleys claim that two non-contiguous properties are also integrated in use with the condemned property. The first is a 23 acre tract located approximately 7.6 miles from the condemned property which was purchased by the Powleys as individuals on December 31, 1979. This tract (the campground site) was used primarily as a campground and parking lot, with improvements including storage facilities, a store, administrative offices, sale and rental facilities, repair shops, a mobile home, the manager’s residence and additional lodging facilities.

The camp store sold boating equipment, clothing, and souvenirs, as well as kayaks, canoes, paddles, helmets and life jackets. The kitchen area on the property was used to prepare and serve meals to patrons before and after their rafting trips. At this site, life jackets were distributed to rafters before they assembled and boarded buses which took them to the launch site on the condemned property.

The second non-contiguous tract is a 3.5 acre parcel located approximately 2.2 miles from the condemned property which was purchased by the Powleys as individuals on July 19, 1979. [178]*178This property (the guidehouse site) was improved with the addition of an office, a storage garage and a log cabin which on the date of condemnation was used to house river guides who did not reside locally.

All three of the properties were leased by the Powleys to Whitewater pursuant to an oral agreement. The Powleys conducted other activities on the properties unassociated with Whitewater, including “climbing” which was advertised by a sign on the campground premises. Fees for camping and the photographing of camping and rafting activities were paid directly to the Powleys.

On appeal, the issue before us is whether the unity of use doctrine set forth in section 605 of the Code3 applies to three non-contiguous parcels of land used principally by a corporate tenant but owned by a husband and wife individually, when two of the parcels are located approximately two and seven miles respectively from the condemned parcel.

Initially, we note that our scope of review in an eminent domain proceeding is limited to a determination of whether the trial court abused its discretion or committed an error of law. Harborcreek Township v. Ring, 131 Pa.Commonwealth Ct. 502, 570 A.2d 1367 (1990).

Section 605 of the Eminent Domain Code sets forth the statutory provisions of the unity of use doctrine as follows:

Where all or a part of several contiguous tracts owned by one owner is condemned or a part of several non-contiguous tracts owned by one owner which are used together for a unified purpose is condemned, damages shall be assessed as if such tracts were one parcel. (Emphasis added.)

Under the unity of use doctrine, two separate properties are treated as one for eminent domain purposes when they are so inseparably connected by the use to which they are applied that injury to one will necessarily and permanently injure the other. Werner v. Department of Highways, 432 Pa. 280, 247 A.2d 444 (1968).

[179]*179The Powleys submit that the campground and guide-house tracts are dependent on the condemned launch site for their existence and if not used in conjunction with the launch site, severe and permanent financial damage will result. Therefore, under the unity of use doctrine, damages should be assessed as if all three tracts were one parcel.

In Sams v. Redevelopment Authority, 431 Pa. 240, 244 A.2d 779 (1968), our Supreme Court held that non-contiguous tracts must have both identical users as well as identical ownership in order for the unity of use doctrine to apply under section 605. In Sams, one tract was owned by a partnership comprised of two individuals and the other owned by a corporation which was solely owned by the same individuals. The condemned property was owned by the partnership and used as a scrap-yard. The other non-contiguous tract was being used by the corporate entity as a foundry.

The Supreme Court held that there was no unity of use in this situation where there are not joint identical users of both parcels of land. The Supreme Court stated:

After thoroughly researching case authority in this Commonwealth, we are firmly convinced that recovery has never been permitted under the unity of use doctrine absent joint identical users of both parcels of land.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pignetti, G & J, h/w, Aplts. v. PennDOT
Supreme Court of Pennsylvania, 2025
G. Pignetti & J. Pignetti v. DOT
Commonwealth Court of Pennsylvania, 2023
West Whiteland Associates v. Commonwealth
690 A.2d 1266 (Commonwealth Court of Pennsylvania, 1997)
Glen Lincoln, Inc. v. Commonwealth, Department of Transportation
658 A.2d 881 (Commonwealth Court of Pennsylvania, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
631 A.2d 743, 158 Pa. Commw. 174, 1993 Pa. Commw. LEXIS 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powley-v-commonwealth-pacommwct-1993.