Heidelberg Tp. for Footpath, Alleyway and Bridge Purposes, In re

• Decision Date: 15 April 1981
• Citation: 58 Pa.Cmwlth. 321,428 A.2d 282
• Parties: In Re Condemnation By the TOWNSHIP OF HEIDELBERG FOR FOOTPATH, ALLEYWAY AND BRIDGE PURPOSES, etc. Appeal of Donald K. SPEICHER and Martha M. Speicher, his wife. In Re Condemnation By the TOWNSHIP OF HEIDELBERG FOR FOOTPATH, ALLEYWAY AND BRIDGE PURPOSES, etc. Appeal of Harry Z. FRY and Hilda M. Fry, his wife.
• Court: Pennsylvania Commonwealth Court

Page 282

428 A.2d 282

58 Pa.Cmwlth. 321

In Re Condemnation By the TOWNSHIP OF HEIDELBERG FOR FOOTPATH, ALLEYWAY AND BRIDGE PURPOSES, etc Appeal of Donald K. SPEICHER and Martha M. Speicher, his wife In Re Condemnation By the TOWNSHIP OF HEIDELBERG FOR FOOTPATH, ALLEYWAY AND BRIDGE PURPOSES, etc Appeal of Harry Z. FRY and Hilda M. Fry, his wife.

Commonwealth Court of Pennsylvania.

Argued Feb. 5, 1981.

Decided April 15, 1981.

John A. Hoffert, Jr., Scott D. Keller, Matten & Cottom, Reading, for appellants.

Scott L. Huyett, Reading, for Tp. of Heidelberg.

Raymond C. Schlegel, Balmer, Mogel, Speidel & Roland, Reading, for appellee.

Before BLATT, MacPHAIL and WILLIAMS, JJ.

MacPHAIL, Judge.

This is an appeal from an order of the Court of Common Pleas of Berks County dismissing the preliminary objections of Harry Z. Fry, Hilda M. Fry, his wife, Donald K. Speicher and Martha M. Speicher, his wife, (collectively, Condemnees) to the declaration of taking filed by the condemnor Township of Heidelberg.

In February, 1978, the Township of Heidelberg (Township), a second class township, filed a declaration of taking to acquire land for the purpose of constructing thereon a footpath and/or alleyway and bridge, for use by school children walking from the Fry Manor residential development to the Conrad Weiser School Complex. At present, the children must travel along the berm of U. S. Route 422, a busy highway, to reach the school. ¹ The proposed footpath and/or alleyway would route the children in another direction across property at the end of Lynn Street in the Fry Manor development, across a bridge over the Furnace Creek, and across land on the other side leading up to the School District's property. The Township proposes to condemn a strip of land, approximately 132 feet by 54 feet, belonging to the Speichers who live on the Fry Manor side of the creek. It also proposes to acquire a strip, approximately 30 feet by 152 feet, owned by the Frys who live on the school side of the creek.

The condemnor Township's initial condemnation resolution referred to a taking of an easement or right of way over the Condemnees' property, whereas its declaration of taking referred to the taking of a fee simple interest. The Court allowed the Township to amend the language in its resolution to conform to that in its declaration of taking.

On appeal, the Condemnees argue that the lower court erred in dismissing their preliminary objections for the following reasons:

1) The condemnor Township had no express or implied power to condemn Condemnees' property to construct a footpath for school children and the public.

2) The Township improperly initiated the condemnation proceedings without making any cost or feasibility studies centering on the proposed location for the footpath and bridge.

3) The condemnation for a footpath having a width up to 54 feet is excessive.

4) The condemnation for a new footpath is arbitrary, capricious, and an abuse of discretion.

5) The initial condemnation resolution which referred to a taking of an easement of right of way is ineffective to condemn a fee simple interest.

In examining the lower court's decision and the record, we must remember that in eminent domain cases our scope of review "is limited to a determination of whether the court abused its discretion or committed an error of law." Pidstawski v. South Whitehall Township, 33 Pa.Cmwlth. 162, 166, 380 A.2d 1322, 1324 (1977). "It is not for this Court to determine whether or not we would have reached the same conclusions, but rather whether or not the record contains sufficient competent evidence to support the conclusions of the court below." Riehl v. Millcreek Township Sewer Authority, 26 Pa.Cmwlth. 70, 72, 362 A.2d 478, 479 (1976).

Addressing the Condemnees' last issue first, we hold that the lower court correctly determined that the Township as condemnor was not precluded from taking a fee simple interest in Condemnees' property, because of an inadvertent reference to an easement or right of way in its condemnation resolution. We agree that the fee simple interest was intended, as manifested in the declaration of taking. Under Section 406(e) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-406(e), ² the lower court properly allowed the Township to cure its technical error by amending its resolution to conform to the declaration of taking.

Whether the Township possessed the power to condemn for a footpath and/or alleyway ³ is the threshold issue of this case; for without that authority no condemnation can take place. Winger v. Aires, 371 Pa. 242, 89 A.2d 521 (1952). While the lower court failed to address the issue of whether the Township had the authority to condemn for an alleyway, it did hold that the legislature intended to grant to second class townships the right and authority to condemn land for the purpose of establishing a footpath. This power, the lower court found, was implied within the Second Class Township Code (Code), Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65101 et seq.

"It is well established that the exercise of the power of eminent domain is necessary in derogation of the right to hold property and that the authority to exercise that power should be strictly construed." Golding Condemnation Case, 33 Pa.Cmwlth. 635, 638, 382 A.2d 509, 511 (1978). A municipal corporation, such as this second class Township, "possesses only those powers granted in express words, and those necessarily or fairly implied or incident to the powers expressly granted." Id. at 639, 382 A.2d at 511.

We agree with the lower court that, although the power is not expressly granted, the authority to condemn for a footpath is fairly implied from the following sections of the Code. Section 702 of the Code, added by Section 9 of the Act of July 10, 1947, P.L. 1481, as amended, gives second class townships the power:

To provide for and expend moneys from the general funds of the township for the construction and maintenance of sidewalks and footpaths, whenever deemed necessary, for the protection of the traveling public. 53 P.S. § 65738.

Section 1404 of the Code, added by Section 30 of the Act of July 10, 1947, P.L. 1481, as amended, provides:

Whenever it shall appear to the supervisors that any part or portion of any road or highway is dangerous to the traveling public and such danger could be materially reduced or lessened by the construction of a sidewalk or footpath, the supervisor shall have the right to lay out and construct a sidewalk or footpath along such dangerous portion of said road or highway of such materials as they shall deem advisable, and to expend moneys from the general fund of the township therefor. In case the highway is a State or county highway, the written consent of the Department of Highways or the county commissioners, as the case may be, shall first be obtained. 53 P.S. § 66404.

By its express grant of the above powers, the legislature necessarily implied a grant of the power to condemn for sidewalks and footpaths because such power often is needed to fulfill the Township's specifically authorized purposes. In this case, the Township deems construction of a footpath "necessary for the protection of the traveling public," because at present school children walking from Fry Manor to the school must walk along a dangerous highway. Because the Condemnees refuse an allegedly reasonable sale price for their properties, the Township has no choice but to condemn the property for its valid purpose.

The fact that the footpath would not be constructed "along such dangerous portion of said road or highway" does not destroy the Township's power to condemn. Establishing the proposed footpath would reduce the current danger to the traveling public's safety, equally as well as would the construction of a path along the highway. Furthermore, we doubt that the legislature intended the above phrase in Section 1404 of the Code, which is not found within Section 702 of the Code, to act as a restriction on the location of the footpath. Since the Township certainly can condemn private property abutting the highway right of way for a footpath, we find that the Township can condemn Condemnees' property in a residential development for the same purpose. We note that in some instances construction of a footpath along a highway would be physically impossible, necessitating construction elsewhere.

Although the lower court neglected to address the question of whether the Township has power to condemn for an alleyway, we do not hesitate to hold that the Township has the requisite authority to do so. A second class township undeniably has the power to condemn for the opening of roads, under Article XI of the Code, 53 P.S. §§ 66101-66185, and under Section 13 of the General Municipal Law. ⁴ The Code defines "Road" of "Public Road" as "a road of a township of the second class and shall include a street, lane, alley, court or public square of such township." (Emphasis added.) Accordingly, we hold that the Township's power to condemn for a road necessarily includes the power to condemn for an alleyway.

The remaining three issues raise the question of whether, if the Township possesses the power to condemn, its...