In re Forrester

• Decision Date: 20 November 2003
• Docket Number: No. 161 MAP 2001.,161 MAP 2001.
• Citation: 575 Pa. 365,836 A.2d 102
• Parties: In re Interest of Robert W. FORRESTER, Appeal of Rodney J. McKenrick, Bonnie F. McKenrick, Harold S. Forrester, and Helen B. Forrester.
• Court: Pennsylvania Supreme Court

836 A.2d 102

575 Pa. 365

In re Interest of Robert W. FORRESTER,

Appeal of Rodney J. McKenrick, Bonnie F. McKenrick, Harold S. Forrester, and Helen B. Forrester.

No. .

Supreme Court of Pennsylvania.

Argued May 15, 2002.

Decided November 20, 2003.

Thomas J. Finucane, Chambersburg, for appellants Rodney J. and Bonnie F. McKenrick, Harold S. and Helen B. Forrester.

Joseph Keith Goldberg, Harrisburg, for appellee Robert W. Forrester.

Before: ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Chief Justice CAPPY.

The issue with which we are presented today is whether the Commonwealth Court erred in determining that there is no requirement that the Agricultural Lands Condemnation Approval Board ("ALCAB") must approve of the opening of a private road under the law commonly known as the Private Road Act ("Act"), 36 P.S. § 2731 et seq., when that road is in an Agricultural Security Area ("ASA"). For the following reasons, we affirm.

Robert W. Forrester ("Appellee") owns a twenty-acre tract of land in Franklin County that is landlocked. Appellee filed a petition under the Act requesting that a Board of View ("Board") be appointed pursuant to 36 P.S. § 2731 to locate and open a private road from his landlocked property over farmland owned by Rodney J. McKenrick, Bonnie F. McKenrick, Harold S. Forrester, and Helen B. Forrester (collectively, "Appellants"). As Appellants' land is located in an ASA as defined by the Agricultural Area Security Law, 3 P.S. § 901 et seq., Appellants argued that a private road may not be opened without the prior approval of ALCAB.

The Board filed a report with the court of common pleas. It rejected Appellants' argument that the private road could not be opened without prior approval from ALCAB. It proceeded to find that Appellee had established the necessity sufficient to entitle him to have a private road opened so that he could access his landlocked property. The Board fixed the location of the private road, and assessed damages against Appellee in the amount of $ 11,325.00. The trial court affirmed the Board's report.

On appeal, the Commonwealth Court affirmed, finding that no approval was needed from ALCAB prior to the opening of the private road pursuant to the Act.

Appellants filed a petition for allowance of appeal with this court. We granted allocatur, limited to the question of whether ALCAB needed to grant approval prior to the opening of a private road on land within an ASA. As this question is purely one of law, our review is de novo. Buffalo Twp. v. Jones, 571 Pa. 637, 813 A.2d 659, 664 n. 4 (2002).

Appellants argue that the Commonwealth Court erred in determining that approval from ALCAB did not need to be obtained prior to the opening of a private road across their land. They note that the Agricultural Area Security Law states that no agency of the Commonwealth, political subdivision, authority, public utility or other body "having or exercising powers of eminent domain shall condemn" any land within an ASA unless prior approval has been obtained from ALCAB. 3 P.S. § 913(a) and (b). Appellants contend that the opening of a private road pursuant to the Act constitutes an exercise of eminent domain by a governmental or other body within the meaning of § 913 of the Agricultural Area Security Law. Thus, they argue, a private road could not be opened on their land, which is located within an ASA, unless Appellee had first obtained approval of ALCAB.

Appellants commence their argument that § 913 applies to this matter with the proposition that the opening of a private road pursuant to the Act constitutes an exercise of the powers of eminent domain. In making this argument, Appellants concede that proceedings under the Act are not controlled by the Eminent Domain Code ("Code"), 26 P.S. § 1-101 et seq.¹ Yet, a determination that proceedings under the Act are not controlled by the Code does not provide a definitive answer to this issue. Section 913 of the Agricultural Area Security Law speaks in terms of eminent domain powers, and does not limit the definition of such powers to those enumerated in the Code. Thus, we must determine whether the opening of a private road is an exercise of eminent domain.

It is axiomatic that the state exercises its powers of eminent domain when it takes property for a "public use". Balent v. City of Wilkes-Barre, 542 Pa. 555, 669 A.2d 309, 314 (1995). Appellants contend that this court has long recognized that the opening of a private road serves a public use or purpose; thus, they conclude, the opening of a private road constitutes an exercise of eminent domain. In support of their position, they cite to Waddell's Appeal, 84 Pa. 90 (Pa.1877). They contend that this court in Waddell's Appeal declared that the opening of a private road did not authorize the taking of private property for private use; rather, this court ostensibly concluded that such a taking confers benefits on the public at large. Appellants' brief at 13 (quoting Waddell's Appeal, 84 Pa. at 93-94).

Unfortunately, the language cited by Appellants was not written by this court, but rather was penned by the trial court in that matter;² there is no indication that this court adopted such language. Thus, Waddell's Appeal does not provide the irrefutable support for Appellants' position that they had concluded it did. Furthermore, Waddell's Appeal did not concern a challenge to the opening of a private road pursuant to the Act. Rather, the controversy involved the Act of 13th of June 1874, P.L. 286, granting right-of-ways for the mining of anthracite coal. Thus, any mention of the Act was dicta.

Our own review of the case law reveals that this court has on several occasions discussed whether the opening of a private road pursuant to the Act effectuated a public purpose. Unfortunately, the vast majority of these statements were obiter dicta. See, e.g., In re Legislative Route 62214, Section 1-A, 425 Pa. 349, 229 A.2d 1 (1967); Philadelphia Clay Co. v. York Clay Co., 241 Pa. 305, 88 A. 487 (1913); Palairet's Appeal, 67 Pa. 479 (1871).

We have discovered only one instance in which this court was squarely presented with the issue of whether the opening of a private road effectuated a public purpose. In Pocopson Road, 16 Pa. 15 (1851), one of the litigants argued that the opening of a private road pursuant to the Act constituted a taking for a purely private use. While we denied relief on this claim, our resolution of the issue was wholly unsupported by any reasoning. In a single sentence, we stated that this claim and several others lacked "an appearance of substance". Id. at 17. We are leery of resting our disposition of the issue of whether the opening of a private road pursuant to the Act constitutes a public purpose on so insubstantial of a foundation as Pocopson Road. Instead, we will conduct our analysis of this issue independent of any holding issued by the Pocopson Road court.

As noted supra, the state exercises its powers of eminent domain when it takes property for a "public use". Balent, supra. We have not, however, required that the taking confer only public benefits. We have explained that a taking does not "lose its public character merely because there may exist in the operation some feature of private gain, for if the public good is enhanced it is immaterial that a private interest may also be benefited." Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 54 A.2d 277, 283 (1947). Yet, a taking will be seen as having a public purpose only where "the public is to be the primary and paramount beneficiary of its exercise." In re the Condemnation of Bruce Avenue, 438 Pa. 498, 266 A.2d 96, 99 (1970) (citation and internal quotation marks omitted). Thus, for a taking to be considered as effectuating a public purpose, this court has required that it is the citizenry at large, rather than a private entity or individual, that will be the principal recipient of any benefit.

Appellee contends that the opening of a private road cannot be considered a taking for a public purpose. He reasons that "[a]lthough one can concede that society at large benefits when a landowner has access to his or her property, it is a stretch of logic to say that giving limited, private access is, therefore, a public purpose." Appellee's brief at 3. We must agree. The primary beneficiary of the opening of a private road is the private individual or entity who petitions for such relief. Granted, society as a whole may receive a collateral benefit when landlocked property may be accessed by motorized vehicles, and thus presumably be put to its highest economic use; yet, it cannot seriously be contended that the general population is the primary beneficiary of the opening of a road that is limited to the use of the person who petitioned for it.³ Thus, as the opening of a private road pursuant to the Act does not accomplish a public purpose, it cannot be seen as the exercise of the power of eminent domain.⁴ As such, the opening of a private road pursuant to the Act in an ASA did not require the prior approval of ALCAB.⁵

For the foregoing reasons, the order of the Commonwealth Court is affirmed.

Former Chief Justice ZAPPALA did not participate in the decision of this case.

Justice SAYLOR files a concurring opinion.

Justice NEWMAN files a dissenting opinion in which Justice NIGRO joins.

Justice SAYLOR, concurring.

I share the view expressed by Madame Justice Newman in her dissenting opinion that interpreting the Private Road Act, 36 P.S. §§ 2731-2891, as implicating little or no public interest undermines its ostensible constitutionality. Cf. Pratt v. Allen, 116 Misc.2d 244, 455 N.Y.S.2d 904, 906-07 (N.Y.1982) (analyzing a proceeding under New York's private road enactment as entailing an exercise of eminent domain, which must be grounded in a public purpose to meet constitutional requisites).⁶ Nevertheless, I...