Ewalt v. Pennsylvania Turnpike Commission

• Decision Date: 27 June 1955
• Citation: 382 Pa. 529,115 A.2d 729
• Parties: H. Ward EWALT, Jr., and Jane Stewart Ewalt, his wife, Appellants, v. PENNSYLVANIA TURNPIKE COMMISSION.
• Court: Pennsylvania Supreme Court

Page 729

115 A.2d 729

382 Pa. 529

H. Ward EWALT, Jr., and Jane Stewart Ewalt, his wife, Appellants, v. PENNSYLVANIA TURNPIKE COMMISSION.

Supreme Court of Pennsylvania.

June 27, 1955.

Elmer E. Harter, Jr., Harrisburg, William H. Markus, Pittsburgh, Prowell & Harter, Harrisburg, for appellants.

F. Brewster Wickersham, Harry C. Pepper, Metzger, Wickersham & Knauss, Harrisburg, Edward L. Springer, Deputy Atty. Gen., Herbert B. Cohen, Atty. Gen., for appellee.

Before STERN, P. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO, and ARNOLD, JJ.

JONES, Justice.

The plaintiffs, husband and wife, filed their bill in equity in the Court of Common Pleas of Dauphin County against the Pennsylvania Turnpike Commission in an effort to compel the defendant to restore the complainants' property to its condition prior to the defendants' construction of the western extension of the turnpike. The defendant filed a preliminary objection in the nature of a demurrer under Pa.R.C.P. 1017(b)(4), 12 P.S. Appendix, to the effect that the Pennsylvania Turnpike Commission, being an instrumentality of the Commonwealth of Pennsylvania, was immune from suit for consequential damages to real estate which is what the complaint embraced. After argument, the court entered a decree sustaining the objection and dismissing the bill at the plaintiffs' costs. This appeal by the plaintiffs followed.

The learned court below impliedly held that the Section of the Western Pennsylvania Turnpike Extension Act of 1941, P.L. 101, 36 P.S. § 654 et seq., which purports to give a right of action to a public or private owner for property damaged or destroyed in the Commission's carrying out of the powers conferred by the Act was unconstitutional, saying that 'Since the Turnpike Commission is an instrumentality of the Commonwealth engaged in an essential governmental function, liability for consequential damages may not be imposed upon it without notice thereof being given in the title.'

The complaint avers the plaintiffs' ownership of property situate on Pearce Mill Road in Pine Township, Allegheny County, containing 10.725 acres more or less and improved with a two-story brick and frame dwelling; that the defendant by resolution of June 14, 1949, condemned a 200 foot right of way with slopes for the construction of the western extension of the turnpike which ran through Pine Township at a distance of approximately 600 feet from the plaintiffs' property; that prior to the time of the defendant's construction of the turnpike extension in Pine Township pursuant to the above-mentioned resolution, there was on the plaintiffs' property a lake, one and three-quarter acres in area, which was fed by the waters of Pine Creek and was well stocked with fish and other aquatic life; that in the construction of the turnpike the defendant made great cuts and fills in the hills and valleys for a distance of several miles both east and west of the intersection of the turnpike and Pearce Mill Road; that such cuts and fills were left exposed with the result that through erosion large quantities of dirt, stones and debris were washed into Pine Creek and carried into the plaintiffs' lake; and that the defendant continues to permit the slopes of the cuts and fills, created in the construction of the turnpike, to be eroded and discharged into the plaintiffs' lake to such an extent that the lake is becoming filled with the eroded earth, stones and debris, and all the fish and aquatic life formerly in the lake have been killed by the defendant's failure to maintain and operate the turnpike properly.

The complaint further sets forth that the defendant's conduct in permitting the earth and dirt of the slopes of the highway to be discharged into Pine Creek and onto the plaintiffs' property is a continuing trespass and that the plaintiffs are without an adequate remedy at law. Wherefore, they prayed equitable relief as follows: (1) that the defendant be required to remove from the plaintiffs' property all earth and dirt deposited there as a result of the defendant's construction and maintenance of the western extension of the turnpike; (2) that the defendant be required to contain all discharge of earth and dirt from the banks and slopes of the cuts and fills of the turnpike so that such material cannot wash onto the plaintiffs' property; (3) that the defendant be required to remove such earth, silt and dirt from the plaintiffs' lake as has been deposited there through the defendant's failure to contain the slopes of the turnpike within their bounds and to restore the plaintiffs' lake to the condition in which it was prior to the defendant's stated trespass; and (4) that the defendant be required to restock the plaintiffs' lake with fish and aquatic life comparable to that existing prior to the time of the defendant's construction of the turnpike extension.

The legal conclusions upon which the court below based its decision were for the most part correct. But, there was crucial error in the court's treatment of the right of action conferred by the Western Pennsylvania Turnpike Extension Act of 1941, supra, on persons whose property was damaged or destroyed by the construction, maintenance or operation of the turnpike.

That the damages whereof the plaintiffs complain are consequential and not direct is clear. Contrary to the plaintiff's contention, there was no taking of their property. Nor did the defendant make entry thereon within the legal significance of that term. And, when property is not actually taken or entered but an injury to it occurs as the natural result of an act lawfully done by another, the damages are consequential. In re Soldiers and Sailors Memorial Bridge, 308 Pa. 487, 490, 162 A. 309. Here, the averments of the plaintiffs' complaint, which must be taken as true for present purposes, show an injury to the plaintiffs' property occurring as the natural result of the defendant's lawful actions.

It is also true that Article XVI, Section 8 of the Pennsylvania Constitution, which imposes on municipal and other corporations and individuals...