Harborcreek Tp. v. Ring
| Decision Date | 17 January 1980 |
| Citation | 48 Pa.Cmwlth. 542,410 A.2d 917 |
| Parties | HARBORCREEK TOWNSHIP, Appellant, v. Fred H. RING and Nell K. Ring, his Wife, Appellees. |
| Court | Pennsylvania Commonwealth Court |
Eugene J. Brew, Jr., Dale & Brew, Erie, for appellant.
Michael E. Dunlavey, North East, for appellees.
Before WILKINSON, BLATT and CRAIG, JJ.
Alleging a "de facto" taking, the appellees commenced this litigation with a Petition for the Appointment of a Board of Viewers filed pursuant to Section 502(e) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, As amended, 26 P.S. § 1-502(e). The appellees are the owners of a property which is known as Shorewood Inn in Harborcreek Township (Township) and which extends to the shoreline of Lake Erie. In the summer of 1977 the Township extended the road to the Lake and installed a boat ramp where the extension of the road met the lake shore. On each side of the boat ramp the Township erected a breakwall. The boat ramp and the breakwalls were formed by laying long concrete slabs adjacent to one another.
The Township filed preliminary objections positing the failure to state a cause of action and challenging the allegation of a taking. After a series of depositions and a court-conducted view of the property, the Court of Common Pleas of Erie County found that there had been a de facto taking of the appellee's property and dismissed the Township's preliminary objections to the Petition. This appeal followed.
When confronted with a petition for appointment of viewers alleging a de facto taking to which a preliminary objection in the nature of a demurrer is filed, the lower court must first decide whether as a matter of law the averments of the petition, taken as true, are sufficient to state a cause of action of a de facto taking. If not, the preliminary objections must be sustained and the petition dismissed or the petitioner allowed to amend his pleading. If the averments, taken as true, might establish a de facto taking, the lower court must take evidence by deposition or otherwise so that a judicial determination might be made. If the averments on their face establish a de facto taking, then the preliminary objections must be dismissed. Petition of Ramsey, 20 Pa.Cmwlth. 207, 342 A.2d 124 (1975).
An order dismissing preliminary objections to a petition for the appointment of viewers alleging a de facto taking is a final and appealable order. Sunbeam Coal Corp. v. Pennsylvania Game Commission, 37 Pa.Cmwlth. 469, 391 A.2d 29 (1978). The question now before this Court is whether there was substantial evidence to support the findings by the court of common pleas that there was a de facto taking.
A "de facto" taking occurs where "an entity, clothed with the power of eminent domain, exercises that power and the immediate, necessary, and unavoidable consequence of that exercise is to destroy, injure or damage private property so as to substantially deprive an owner of the beneficial use and enjoyment thereof," and just compensation must be paid. Monaco v. Department of Transportation, 26 Pa.Cmwlth. 387, 391, 363 A.2d 857, 859 (1976). See Greger v. Canton Township, 41 Pa.Cmwlth. 20, 399 A.2d 138 (1979).
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Thomas A. Mcelwee v. Southeastern Transp.
...trial court, as fact-finder, had the discretion to weigh the evidence and determine which was most credible, Harborcreek Township v. Ring, 48 Pa.Cmwlth. 542, 410 A.2d 917 (1980), and SEPTA therefore maintains that it is irrelevant whether the evidence submitted to the trial court might esta......
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...1137 (1989); Miller v. Department of Transportation, 91 Pa.Commonwealth Ct. 622, 498 A.2d 1370 (1985); Harborcreek Township v. Ring, 48 Pa.Commonwealth Ct. 542, 410 A.2d 917 (1980); Jennings v. Department of Transportation, 38 Pa.Commonwealth Ct. 206, 395 A.2d 582 (1978); Jacobs v. Nether P......
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Pennsylvania Elec. Co. v. Waltman
...to the property owner which are the immediate, necessary and unavoidable consequences of that exercise. Harborcreek Township v. Ring, 48 Pa.Commonwealth Ct. 542, 410 A.2d 917 (1980). To find a de facto taking, there must be exceptional circumstances which have substantially deprived the pro......
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IN RE PROPERTY SITUATE ALONG PINE ROAD IN EARL TOWNSHIP
...determination can be made. Borough of Barnesboro v. Pawlowski, 100 Pa.Cmwlth. 94, 514 A.2d 268 (1986); Harborcreek Township v. Ring, 48 Pa.Cmwlth. 542, 410 A.2d 917 (1980). We begin our analysis with the well-established principle that a de facto taking occurs when an entity, clothed with t......